Case 3:18-cv-01526 Document 161 Filed 03/25/20 Page 1 of 14 PageID #: 990

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

Civ. Act. No. 3:18cv01526

(Chambers, J.)

BETSY JIVIDEN, in her official capacity as Commissioner of the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and SHELBEY SEARLS, in his official capacity as the Superintendent of WESTERN REGIONAL JAIL AND CORRECTIONAL FACILITY,

Defendants.

PLAINTIFF’S EMERGENCY MOTION FOR PRELIMINARY INJUNCTION REGARDING DEFENDANTS’
PREVENTION, MANAGEMENT, AND TREATMENT OF COVID-19

Plaintiffs, on behalf of themselves and all others incarcerated in WVDCR custody,

respectfully request that the Court order Defendants to immediately develop and implement an

appropriate plan for the prevention and management of COVID-19 in the State’s prisons and

jails, as well as order other appropriate relief to ensure that infection does not spread unabated to

inmates, correctional staff, and others in WVDCR custody. Plaintiffs ask that the Court expedite

the deadline for responsive briefing, if any, from Defendants, and that the Court set this matter

for a telephonic hearing as soon as practicable.

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Factual Background

“On March 11, 2020, the World Health Organization announced that the COVID-19

outbreak can be characterized as a pandemic, as the rates of infection continue to rise in many

locations around the world and across the United States.” Proclamation on Declaring a National

Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020),

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-

concerning-novel-coronavirus-disease-covid-19-outbreak/. On March 13, President Trump

declared a national emergency, noting that “[t]he spread of COVID-19 within our Nation’s

communities threatens to strain our Nation’s healthcare systems.” Id. That same day, West

Virginia Governor Jim Justice announced a statewide school closure plan as part of an “effort to

protect all the people of West Virginia[.]” See “COVID-19 UPDATE,” available at

https://governor.wv.gov/News/press-releases/2020/Pages/COVID-19-UPDATE-Gov.-Justice,-

Department-of-Education-issue-updated-guidance-on-school-closures-in-West-Virginia.aspx.

Three days later, on March 16, Governor Justice declared a statewide state of emergency, under

W. Va. Code § 15-5-2. See “A Proclamation,” available at

https://governor.wv.gov/Documents/2020%20Proclamations/State-of-Emergency-March-16-

2020.pdf. In his declaration, Governor Justice noted that “it is of the utmost importance that

[state officials] throughout the state have the ability to take measures necessary to ensure the

safety of our citizens” during this epidemic which “constitutes a disaster under section two,

article five, chapter fifteen of the Code of West Virginia” and which “has been deemed a

pandemic by the World Health Organization[.]” Id. The same day, he announced that

“correctional facilities . . . have halted all non-attorney visitation[.]” See “Gov. Justice

Administration members, State officials provide updates on COVID-19 preparedness efforts,”

available

at

https://governor.wv.gov/News/press-releases/2020/Pages/Gov.-Justice-

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Administration-members,-State-officials-provide-updates-on-COVID-19-preparedness-

efforts.aspx. On March 22, 2020, the West Virginia Supreme Court of Appeals closed the West

Virginia courts to all non-emergency business. See Administrative Order, available at

http://www.courtswv.gov/covid19/JudicialEmergencyDeclared3-22-20.pdf. On March 23, 2020,

Governor Justice issued an executive order directing that all West Virginia residents stay at

home, other than in exceptional circumstances, to limit the transmission of the disease. See

Executive

Order

No.

9-20,

available

at

https://governor.wv.gov/Documents/2020%20Executive%20Orders/STAY-AT-HOME-ORDER-

MARCH-23-2020.pdf.

It is well recognized that the virus is likely to spread extremely quickly in incarcerated

settings, especially where—as here—the setting is substantially overcrowded such that

appropriate social distancing is not an option. See Charleston Gazette, “Seven out of 10 WV jails

were over capacity Wednesday while the House passed a bill meant to cut jail population,”

available at https://www.wvgazettemail.com/news/legislative_session/seven-out-of-wv-jails-

were-over-capacity-wednesday-while/article_20a9e35d-3282-55b1-a01c-5f8eba73381a.html.

Indeed, hundreds of inmates are currently incarcerated in West Virginia jails beyond the jails’

established bedding capacity. This has required Defendants to house multiple inmates in cells

that were intended for fewer people, such that there is simply no ability to maintain an

appropriate six foot distance between individuals to prevent the spread of infection.

Moreover, Plaintiffs in this matter are medically vulnerable, rendering them at high risk

for severe complications or death from COVID-19. For instance, Plaintiff Baxley suffers from

severe asthma, among other disorders. According to the Center for Disease Control, he may

therefore “be at a higher risk of getting very sick from COVID-19.” See Center for Disease

Control and Prevention, “Are you at higher risk for severe illness?—Asthma,” available at

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https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/asthma.html. Plaintiff WellsWright suffers from Chronic Obstructive Pulmonary Disease and emphysema, among other things. These conditions put her at a higher risk of severe outcomes if she contracts COVID-19. See Pulmonary Advisor, “COVID-19 Preparation Recommendations from the COPD Foundation,” available at https://www.pulmonologyadvisor.com/home/topics/lunginfection/copd-foundation-issues-advice-for-patients-concerned-about-coronavirus/. Plaintiff Edmondson is 75 years old and suffers from a chronic sinus condition. He is likely therefore to suffer severe consequences if he contracts COVID-19. See Center for Disease Control and Prevention, “Are you at a higher risk for severe illness?—Older Adults,” available at https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications/olderadults.html. Plaintiff Hall suffers from tachycardia, among other things, making him especially susceptible to a severe case of COVID-19. See Harvard Health Publishing, “Coronavirus Resource Center,” available at https://www.health.harvard.edu/diseases-andconditions/coronavirus-resource-center. Plaintiff Watson has Chronic Obstructive Pulmonary Disease and diabetes, among other things, placing him at higher risk for a severe case of COVID-19. See id. Plaintiff Reed suffers from diabetes and a heart condition, among other things, putting her at higher risk for a severe case of COVID-19. See id. And class member R.H. is HIV positive, putting him at risk of severe complications or death from COVID-19. See id.
As alleged in the First Amended Complaint, Defendants have persistently displayed deliberate indifference to the health, safety, and other basic needs of Plaintiffs. Even without demonstrated deliberate indifference to medical needs, incarceration in a jail or prison poses heightened health risks for inmates and correctional staff during this global pandemic. (See Declaration of Dr. Craig W. Haney, PHD, at 3-10, attached.) “The COVID-19 Pandemic presents penal institutions with an enormous challenge that they are ill-equipped to handle.” (Id.
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at 4.) Correctional facilities have little ability to implement the social distancing required to combat the spread of COVID-19 and are likely to resort to solitary confinement. (See id.) But “solitary confinement inflicts an additional set of very serious harmful effects that significantly undermine mental and physical health.” (See id. at 5.) And “the Pandemic [itself] has traumatic psychological as well as physical consequences.” (See id. at 9.) Respected health and correctional officials throughout the country have expressed grave concern about the risks to inmates, and have recommended release of inmates to ensure inmate health and safety as well as other immediate protective measures. (See, e.g., Decs. of Drs. Beyrer, Meyer, Golob, Stern, Greifinger & Haney, attached hereto.)
In light of these circumstances, prisons and jails throughout the country have begun releasing thousands of inmates in an effort to prevent an outbreak of COVID-19 in crowded jails and prisons. See The Wall Street Journal, “Jails Release Prisoners, Fearing Coronavirus Outbreak,” available at https://www.wsj.com/articles/jails-release-prisoners-fearing-coronavirusoutbreak-11584885600. “[A]t least 15 states—including Texas, New York, California and Ohio—have taken to releasing low-level offenders as well as those in the elderly and sick categories and thus considered most vulnerable to being rendered in a critical condition if they contract the unique pathogen.” See Fox News, “Concern grows for vulnerable prison populations and employees as coronavirus spreads through overstuffed facilities,” available at https://www.foxnews.com/us/concerns-grow-for-vulnerable-prison-population-and-the-safety-ofemployees-as-coronavirus-spreads-into-overstuffed-cells; see also Prison Policy Initiative, “Responses to the COVID-19 pandemic,” available at https://www.prisonpolicy.org/ virusresponse.html (collecting sources). Iowa, for example, has started to expedite release of 700 inmates who have already granted parole. See Times Republic, “Iowa’s prisons will accelerate release of approved inmates to mitigate COVID-19,” available at
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https://www.timesrepublican.com/news/todays-news/2020/03/iowas-prisons-will-acceleraterelease-of-approved-inmates-to-mitigate-covid-19/. New Jersey has plans to “release as many as 1,000 people from its jails” based on an order signed by New Jersey’s Chief Justice “authorizing the release of inmates serving certain types of sentences in county jails[.]” See New York Times, “1,000 Inmates Will Be Released from N.J. Jails to Curb Coronavirus Risk,” available at https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html?auth=loginemail&login=email.
Plaintiffs have requested from Defendants any plan that they have developed for managing the COVID-19 crisis, but Defendants have failed and refused to provide any such plan. No plan has been publicized by the Governor’s Office or the WVDCR. The American Civil Liberties Union of West Virginia emailed a letter to the Division of Corrections and Rehabilitation on March 10, 2020, requesting information about any official plans the Division has for dealing with COVID-19. (See Ltrs. from ACLU to DCR, attached hereto.) Defendants responded on March 20, 2020, stating that DCR’s plan is exempt from disclosure to the public under section 29B-1-4(19) of the West Virginia Code, but also attaching a letter that purports to outline the WVDCR’s COVID-19 response plan, with sensitive security information removed. (See Ltr. from DCR to ACLU, attached hereto.) That letter provides little detail and fails to address most of the concerns of Plaintiffs outlined below. Likewise, Plaintiffs’ counsel has requested such a plan from Defendants, which would be responsive to Plaintiffs’ discovery requests in this matter and Defendants’ ongoing responsibility to supplement their responses. (See Pl.’s 2d Set of Req,s for Prod. of Docs. to Defendants No. 11 (“Please produce copies of all policies, operating procedures, protocols, and/or directives governing the provision of medical and/or mental health care, including diagnosis and treatment, which have been in effect at any West Virginia Regional Jail facility since January 1, 2019.”).) Defendants responded solely by
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providing the WVDCR policy from 2016 regarding management of infectious diseases, but provided no additional information or documents related to efforts to address the current pandemic.
Defendants’ lack of a transparent and comprehensive plan is alarming for its implications not just for inmates, but also for correctional staff and the community as a whole. Plaintiffs and all other people in the custody of West Virginia’s Division of Corrections and Rehabilitation are highly vulnerable to outbreaks of contagious illnesses, and the risk is only heightened by the overcrowded and often unsanitary conditions in the prisons and jails, coupled with the already inadequate medical staffing and treatment across correctional facilities in the state. When COVID-19 enters West Virginia’s correctional facilities, Plaintiffs in this case and others like them will suffer unnecessary pain and death. Failure to address COVID-19 in the state’s correctional facilities also threatens the community at large, as hundreds of correctional, health care, and other staff interact with the incarcerated population every day, and then return to their homes and communities. Likewise, an outbreak within a jail or prison facility could quickly lead to overwhelming area hospitals with inmates who require ventilators or other significant medical interventions. Finally, many inmates only stay in jail for a few days—just long enough to contract COVID-19 and take it back to their communities when they are released, while not yet displaying any symptoms.
Further, West Virginia’s correctional facilities are already significantly understaffed both in terms of custody staff and health care staff. See WV News, “Overcrowding, understaffing, inmate deaths continue to plague WV jails,” available at https://www.wvnews.com/news/wvnews/overcrowding-understaffing-inmate-deaths-continue-toplague-wv-jails/article_9a788e06-8f50-5907-bd53-40560a2d5f6f.html; WV News, “WV House bill would require PR bonds for misdemeanor offenses,” available at
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https://www.wvnews.com/news/wvnews/wv-house-bill-would-require-pr-bonds-formisdemeanor-offenses/article_0a928d58-0275-5fda-9165-6353af6c4d26.html. As the result, staffing shortages created by infection and illness of staff need to be planned for and addressed.
To prevent the worst from happening, Plaintiffs request that this Court order that Defendants create, implement, and disclose an appropriate evidence-based, substantive, and detailed plan that can help prevent a COVID-19 outbreak, minimize its impact if an outbreak does occur, and contribute to broader efforts in the state and the country to “flatten the curve” of the outbreak. Plaintiffs request that such a plan include (but not be limited to):
 Inmate education;  Staff education;  Requiring staff who experience any COVID-19 symptoms to stay home until tested, or
for a mandatory fourteen days;  Health care and custody staffing plans for keeping the facilities running safely as staff
stays home sick or quarantined;  Staffing plans for services provided by inmates themselves as inmates get sick;  Screening, testing, treatment, and housing of plaintiffs and similarly situated individuals;  Plans for additional precautions to prevent the exposure of vulnerable populations within
the facilities to the virus;  Housing of inmates exposed to the virus;  Provision of hygiene and cleaning supplies to all inmates;  Enhanced plans for cleaning shared spaces and items (such as phones) in between each
inmate’s use;  Coordination with community hospitals and among the correctional facilities in the state;
and
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 Plans for removal of charges for telephone calls or other methods of communication and psychological support for inmates while visitation is eliminated.
Plaintiffs further request that the Court issue an order requiring that sufficient inmates be released from custody to enable DCR to maintain safe distances between inmates to prevent the spread of COVID-19 and to permit appropriate quarantine and treatment of inmates in custody who ultimately contract the virus.
Argument “The traditional office of a preliminary injunction is to protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court’s ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003). “Mandatory preliminary injunctions generally do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief.” In re Microsoft Corp. Antitrust Litig., 333 F.3d at 526 (alterations omitted). In deciding whether to grant a preliminary injunction, “court[s] should consider (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied; (2) the likelihood of harm to the defendant if the injunction is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003). “In applying this four-factor test, the irreparable harm to the plaintiff and the harm to the defendant are the two most important factors.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003) (alterations omitted). “Emphasis on the balance of these first two factors results in a sliding scale that demands less of a showing of likelihood of success on the merits when the balance of hardships weighs strongly in favor of the plaintiff, and vice versa.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir.
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2003). As outlined above, this global pandemic is exactly the kind of extraordinary circumstance
that warrants mandatory injunctive relief because of the grave risk of serious illness and death to Plaintiffs and others similarly situated due to their conditions of confinement in WVDCR custody. And it is that same grave risk that means that the likelihood of irreparable harm to Plaintiffs here and others similarly situated, is unacceptably high. Conversely, Defendants will suffer no harm if the injunction is granted. Developing a plan to prevent the spread of COVID-19 in West Virginia’s DCR facilities protects not only the inmate population, but all WVDCR employees, their families, and the community at large. Ultimately, an appropriate plan will reduce spread of the virus, death, and overwhelming the already limited correctional and community health care systems. It is in the best interest of Plaintiffs, Defendants, and the public for Defendants to establish a rigorous plan for dealing with COVID-19 and for the correctional institutions to maintain a limited population during this crisis. Therefore, factors one, two, and four of the preliminary injunction analysis all weigh heavily in favor of granting the requested relief.
With respect to the third factor, the likelihood of success on the merits, failing to develop contingencies to address the extremely likely event of COVID-19 outbreaks in one or more of the West Virginia jail facilities would violate the constitutional rights of Plaintiffs and others inmates housed in jail facilities. As the Supreme Court has explained, an inmate’s constitutional rights are violated by conditions that pose an unreasonable risk of future harm, even if that harm has not yet come to pass.
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is “reasonable safety.” DeShaney, supra, 489 U.S., at 200, 109 S. Ct., at 1005. . . . It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.
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Helling v. McKinney, 509 U.S. 25, 33-34 (1993). The Court in Helling specifically recognized that communicable disease could constitute such an “unsafe, life-threatening condition:”
In Hutto v. Finney, 437 U.S. 678, 682, 98 S.Ct. 2565, 2569, 57 L.Ed 2d 522 (1978) we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. . . . Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms. Helling, 509 U.S. at 33 (emphasis added); see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, “the mingling of inmates with serious contagious diseases with other prison inmates”). COVID-19 has the potential to cause significant and life-threatening illness to inmates as well as barriers to medical care and to Defendants’ ability to comply with the constitutional requirements for inmate care during incarceration. West Virginia’s state-run correctional facilities are already significantly understaffed both in terms of custody staff and health care staff. Should staff be exposed either in the correctional facilities or in the community and show symptoms, they must be quarantined and/or treated, further reducing available staff to provide medical care or to facilitate such care by, for example, providing security and transportation services. Defendants’ ability to rely on agency and as-needed medical staff may decrease as community demand for those services increases. For the same reason, the availability of community healthcare services, including for hospitalization and specialty appointments, may be substantially curtailed. When COVID-19 arrives in the prison system, demands on healthcare services generally—including medical and custody staff—will only increase as more patients require screening, isolation, testing, and clinical management.
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Conclusion and Prayer for Relief There is a real and immediate risk that potential class members and named plaintiffs incarcerated in West Virginia jails will die or suffer serious medical injuries if Defendants’ fail to properly prepare for the COVID-19 pandemic. The Division of Corrections and Rehabilitation and its health care contractors have put forth no plan demonstrating their ability to address the tsunami that is likely already in the community and may soon crash through the prison gates (if it is not there already), swamping the Division and its contractors’ ability to respond and protect the lives of those in its custody. All four factors for analyzing a request for preliminary injunction favor granting one here. The Court should therefore order Defendants to develop, disclose, and implement a plan that undertakes all appropriate actions to protect Plaintiffs and others who are similarly situated. In particular, the Court should order Defendants to consult with correctional healthcare experts to immediately develop and implement a plan for the prevention and management of COVID-19 in the State’s correctional facilities. Specifically, the plan should include the following components: 1. Inmate education; 2. Staff education; 3. Requiring staff who experience any COVID-19 symptoms to stay home until tested, or for a mandatory fourteen days; 4. Health care and custody staffing plans for keeping the facilities running safely as staff stays home sick or quarantined; 5. Staffing plans for services provided by inmates themselves as inmates get sick; 6. Screening, testing, treatment, and housing of plaintiffs and potential class members; 7. Plans for additional precautions to prevent the exposure of vulnerable populations within the facilities to the virus;
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8. Housing of inmates exposed to the virus; 9. Provision of hygiene and cleaning supplies to all inmates; 10. Enhanced plans for cleaning shared spaces and items (such as phones) in between each
inmate’s use; and 11. Coordination with community hospitals and among the correctional facilities in the state;
and 12. Elimination of charges for telephone calls and other methods of contact between inmates
and their loved ones. Plaintiffs ask that the Court order Defendants to immediately file this plan with the Court.
Finally, Plaintiffs respectfully request that this Court immediately issue an order directing WVDCR to release a sufficient number of inmates reduce overcrowding and allow for appropriate social distancing within the jails and prisons to protect medically vulnerable inmates as well as those who remain incarcerated and correctional staff.
As Courts and public officials around the country have recognized, lives are at immediate risk without appropriate meaningful action. As a result, Plaintiffs respectfully request that the Court grant the above relief, and such other relief as the Court deems equitable and just.
JOHN BAXLEY, JR., et. al., on behalf of themselves and other similarly situated inmates, By Counsel:
/s/ Jennifer S. Wagner Lydia C. Milnes (State Bar No. 10598) Jennifer S. Wagner (State Bar No. 10639) Rachel J. Kincaid (State Bar No. 13726) Mountain State Justice, Inc. 325 Willey Street Morgantown, WV 26505 Phone: (304) 326-0188 Facsimile: (304) 326-0189
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Case 3:18-cv-01526 Document 161 Filed 03/25/20 Page 14 of 14 PageID #: 1003 lydia@msjlaw.org jennifer@msjlaw.org rkincaid@msjlaw.org Counsel for Plaintiffs
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Declaration for Persons in Detention and Detention Staff COVID-19
Chris Beyrer, MD, MPH Professor of Epidemiology Johns Hopkins Bloomberg School of Public Health Baltimore, MD
I, Chris Beyrer, declare as follows:
1. I am a professor of Epidemiology, International Health, and Medicine at the Johns Hopkins Bloomberg School of Public Health, where I regularly teach courses in the epidemiology of infectious diseases. This coming semester, I am teaching a course on emerging infections. I am a member of the National Academy of Medicine, a former President of the International AIDS Society, and a past winner of the Lowell E. Bellin Award for Excellence in Preventive Medicine and Community Health. I have been active in infectious diseases Epidemiology since completing my training in Preventive Medicine and Public Health at Johns Hopkins in 1992.
2. I am currently actively at work on the COVID-19 pandemic in the United States. Among other activities I am the Director of the Center for Public Health and Human Rights at Johns Hopkins, which is active in disease prevention and health promotion among vulnerable populations, including prisoners and detainees, in the US, Africa, Asia, and Latin America.
The nature of COVID-19
3. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease, is a global pandemic and has been termed a global health emergency by the WHO. Cases first began appearing sometime between December 1, 2019 and December 31, 2019 in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City.
4. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus which caused the 2002-2003 SARS epidemic.
5. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.3 to 3.5%, which is 5-35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are selflimited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
6. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate is higher in men, and varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardio-vascular disease, respiratory disease, diabetes, and immune compromise.
7. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS) which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical

Case 3:18-cv-01526 Document 161-1 Filed 03/25/20 Page 2 of 4 PageID #: 1005
ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and parts of China.
8. COVID-19 is widespread. Since it first appeared in Hubei Province, China, in late 2019, outbreaks have subsequently occurred in more than 100 countries and all continents, heavily affected countries include Italy, Spain, Iran, South Korea, and increasingly, the US. As of today, March 16th, 2020, there have been 178,508 confirmed human cases globally, 7,055 known deaths, and some 78,000 persons have recovered from the infection. The pandemic has been termed a global health emergency by the WHO. It is not contained and cases are growing exponentially.
9. SARS-nCoV-2 is now known to be fully adapted to human to human spread. This is almost certainly a new human infection, which also means that there is no pre-existing or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
10. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again, is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20-30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2-14 days, which is why isolation is generally limited to 14 days.
The risks of COVID-19 in detention facilities
11. COVID-19 poses a serious risk to inmates and workers in detention facilities. Detention Facilities, including jails, prisons, and other closed settings, have long been known to be associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.
12. The severe epidemic of Tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of Tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities from which inmates derive.
13. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as 6-foot distancing and proper decontamination of surfaces is virtually impossible. For example, several deaths were reported in the US in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May, 2019.
14. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as overcrowding, population density in close confinement, insufficient ventilation, shared toilet, shower, and eating environments and limits on hygiene and personal protective equipment such as masks and gloves in some facilities.
15. Additionally, the high rate of turnover and population mixing of staff and detainees increases likelihoods of exposure. This has led to prison outbreaks of COVID-19 in multiple detention facilities in China, associated with introduction into facilities by staff.

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16. In addition to the nature of the prison environment, prison and jail populations are also at additional risk, due to high rates of chronic health conditions, substance use, mental health issues, and, particularly in prisons, aging and chronically ill populations who may be vulnerable to more severe illnesses after infection, and to death.
17. While every effort should be made to reduce exposure in detention facilities, this may be extremely difficult to achieve and sustain. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.
18. Pre-trial detention should be considered only in genuine cases of security concerns. Persons held for non-payment of fees and fines, or because of insufficient funds to pay bail, should be prioritized for release. Immigrants awaiting decisions on their removal cases who are not a flight risk can be monitored in the community and should be released from immigration detention centers. Older inmates and those with chronic conditions predisposing to severe COVID-19 disease (heart disease, lung disease, diabetes, immune-compromise) should be considered for release.
19. Given the experience in China as well as the literature on infectious diseases in jail, an outbreak of COVID-19 among the U.S. jail and prison population is likely. Releasing as many inmates as possible is important to protect the health of inmates, the health of correctional facility staff, the health of health care workers at jails and other detention facilities, and the health of the community as a whole.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 16th day of March, 2020.
_____________________ Professor Chris Beyrer1
1 These views are mine alone; I do not speak for Johns Hopkins University or any department therein.

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References
Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85.
Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447.
Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344.
Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)306638. doi: 10.1016/S0140-6736(16)30663-8
Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151

Case 3:18-cv-01526 Document 161-2 Filed 03/25/20 Page 1 of 3 PageID #: 1008
Declaration of Robert B. Greifinger, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and co-author of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 132,000 people have been diagnosed with COVID-19 around the world and 4,947 have died.2 In the United States, about 1,700 people have been diagnosed and 41 people have died thus far.3 These numbers are likely an underestimate, due to the lack of availability of testing.
4. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time. The only way to mitigate COVID-19 is to use scrupulous hand hygiene and social distancing.
5. People in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. According to preliminary data from China, 20% of people in high risk categories who contract COVID-19 have died.
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed March 13, 2020. 3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed March 13, 2020.

Case 3:18-cv-01526 Document 161-2 Filed 03/25/20 Page 2 of 3 PageID #: 1009
6. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that will likely be in very short supply.
7. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
8. Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19. For that reason, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of risk mitigation strategy. At least one nursing home in the Seattle area has had cases of COVID-19 and has been quarantined.
9. The Seattle metropolitan area, hit hard by COVID, is the epicenter of the largest national outbreak at this time. Therefore, it is highly likely, and perhaps inevitable, that COVID19 will reach the immigration detention facility in Tacoma, Washington. Immigration courts and the ICE field office in Seattle have already closed this month due to staff exposure to COVID-19.
10. The conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.
11. Immigration detention facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
12. Many immigration detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. As examples, immigration detention facilities often use practical nurses who practice beyond the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals.
13. The only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks

Case 3:18-cv-01526 Document 161-2 Filed 03/25/20 Page 3 of 3 PageID #: 1010
to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage. 14. To the extent that vulnerable detainees have had exposure to known cases with laboratory-confirmed infection with the virus that causes COVID-19, they should be tested immediately in concert with the local health department. Those who test negative should be released. 15. This release cohort can be separated into two groups. Group 1 could be released to home quarantine for 14 days, assuming they can be picked up from NWDC by their families or sponsors. Group 2 comprises those who cannot be easily transported to their homes by their families or sponsors. Group 2 could be released to a housing venue for 14 days, determined in concert with the Pierce County or Washington State Department of Health.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 14th day in March, 2020 in New York City, New York.
Robert B. Greifinger, M.D.

Case 3:18-cv-01526 Document 161-3 Filed 03/25/20 Page 1 of 3 PageID #: 1011
Declaration of Dr. Marc Stern
I, Marc Stern, declare as follows:
1. I am a physician, board-specialized in internal medicine, specializing in correctional health care. I most recently served as the Assistant Secretary for Health Care at the Washington State Department of Corrections. I also have considerable familiarity with the immigration detention system. I served for four years as a medical subject matter expert for the Officer of Civil Rights and Civil Liberties, U.S. Department of Homeland Security, and as a medical subject matter expert for one year for the California Attorney General’s division responsible for monitoring the conditions of confinement in Immigration and Customs Enforcement (ICE) detention facilities. I have also served as a consultant to Human Rights Watch in their preparation of two reports on health-related conditions of confinement in ICE detention facilities. In those capacities, I have visited and examined more than 20 ICE detention facilities and reviewed hundreds of records, including medical records and detention death reviews of individuals in ICE detention. Attached as Exhibit A is a copy of my curriculum vitae.
2. COVID-19 is a serious disease and has reached pandemic status. At least 132,758 people around the world have received confirmed diagnoses of COVID 19 as of March 13, 2020, including 1,629 people in the United States. At least 4,955 people have died globally as a result of COVID-19 as of March 13, 2020, including 41 in the United States. These numbers will increase, perhaps exponentially.
3. COVID-19 is a novel virus. There is no vaccine for COVID-19, and there is no cure for COVID-19. No one has immunity. The only way to control the virus is to use preventive strategies, including social distancing.
4. The time course of the disease can be very rapid. Individuals can show the first symptoms of infection in as little as two days after exposure and their condition can seriously deteriorate in as little as five days (perhaps sooner) after that.
5. The effects of COVID-19 are very serious, especially for people who are most vulnerable. Vulnerable people include people over the age of 50, and those of any age with underlying health problems such as – but not limited to – weakened immune systems, hypertension, diabetes, blood, lung, kidney, heart, and liver disease, and possibly pregnancy.
6. Vulnerable people who are infected by the COVID-19 virus can experience severe respiratory illness, as well as damage to other major organs. Treatment for serious cases of COVID-19 requires significant advanced support, including ventilator assistance for respiration and intensive care support. An outbreak of COVID-19 could put significant pressure on or exceed the capacity of local health infrastructure.
7. Detention facilities are congregate environments, i.e. places where people live and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch are more likely to spread. This therefore presents an increased danger for the spread of COVID-

Case 3:18-cv-01526 Document 161-3 Filed 03/25/20 Page 2 of 3 PageID #: 1012
19 if and when it is introduced into the facility. To the extent that detainees are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, the risks of spread are greatly, if not exponentially, increased as already evidenced by spread of COVID-19 in another congregate environment: nursing homes and cruise ships.
8. Social distancing in ways that are recommended by public health officials can be difficult, if not impossible in detention facilities, placing people at risk, especially when the number of detainees is high.
9. For detainees who are at high risk of serious illness or death should they contract the COVID-19 virus, release from detention is a critically important way to meaningfully mitigate that risk. Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility. Combined, this has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, cleaning supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff such that they can continue to ensure the safety of detainees.
10. The release of detainees, especially those with increased health-related vulnerability, also supports the broader community because carceral and detention settings, regardless of the level of government authorities that oversee them, are integral parts of the community’s public health infrastructure. Reducing the spread and severity of infection in a Federal immigration detention center slows, if not reduces, the number of people who will become ill enough to require hospitalization, which in turn reduces the health and economic burden to the local community at large.
11. As a correctional public health expert, I recommend release of eligible individuals from detention, with priority given to the elderly and those with underlying medical conditions most vulnerable to serious illness or death if infected with COVID-19.
12. Conditions related to COVID-19 are changing rapidly and may change between the time I execute this Declaration and when this matter appears before the Court. One of the most worrisome changes would be confirmation of a case of COVID-19 within the detention center, either among staff or detainees. In the event of this occurring, and eligible detainees being quarantined or isolated due to possible exposure to the virus, I recommend that the detainee(s) be tested for the virus if testing is available. Armed with the results of that test if it is available, or in the absence of other instructions from the health authority of the municipality to which they will be returning or the Washington State public health authority, those who can easily return to a home without exposure to the public, should be released to that home for continued quarantine or isolation for the appropriate time period. All others can be released to appropriate housing as directed or arranged in coordination with the relevant health authority.
13. I have reviewed Plaintiffs’ complaint and on the basis of the claims presented, conclude that Plaintiffs have underlying medical conditions that increase the risk of serious illness or death if exposed to COVID-19. Due to the risks caused by the congregate environment in immigration

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detention, compounded by the marked increase in risk conferred by their underlying medical conditions, I recommend their release.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this __15th___ day in March, 2020 in Tumwater, Washington.
____________________________ Dr. Marc Stern

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/210 ofP2a3gePa1goefID23#: 1014
Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
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7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
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access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
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place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
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31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
7

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/280 ofP2a3gePa8goefID23#: 1021

COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

8

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/290 ofP2a3gePa9goefID23#: 1022
EXHIBIT A

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2100 oPfa2g3eP1a0goefID23#: 1023
Jaimie Meyer, MD, MS, FACP

CURRICULUM VITAE

Date of Revision: Name: School:

November 20, 2019 Jaimie Meyer, MD, MS, FACP Yale School of Medicine

Education:
BA, Dartmouth College Anthropology 2000 MD, University of Connecticut School of Medicine 2005 MS, Yale School of Public Health Biostatistics and Epidemiology 2014

Career/Academic Appointments:
2005 - 2008 Residency, Internal Medicine, NY Presbyterian Hospital at Columbia, New York, NY 2008 - 2011 Fellowship, Infectious Diseases, Yale University School of Medicine, New Haven, CT 2008 - 2012 Clinical Fellow, Infectious Diseases, Yale School of Medicine, New Haven, CT 2010 - 2012 Fellowship, Interdisciplinary HIV Prevention, Center for Interdisciplinary Research on
AIDS, New Haven, CT 2012 - 2014 Instructor, AIDS, Yale School of Medicine, New Haven, CT 2014 - present Assistant Professor, AIDS, Yale School of Medicine, New Haven, CT 2015 - 2018 Assistant Clinical Professor, Nursing, Yale School of Medicine, New Haven, CT

Board Certification:
AB of Internal Medicine, Internal Medicine, 08-2008, 01-2019 AB of Internal Medicine, Infectious Disease, 10-2010 AB of Preventive Medicine, Addiction Medicine, 01-2018

Professional Honors & Recognition:

International/National/Regional

2018

NIH Center for Scientific Review, Selected as Early Career Reviewer

2017

Doris Duke Charitable Foundation, Doris Duke Charitable Foundation Scholar

2016

American College of Physicians, Fellow

2016

NIH Health Disparities, Loan Repayment Award Competitive Renewal

2016

AAMC, Early Career Women Faculty Professional Development Seminar

2014

NIH Health Disparities, Loan Repayment Program Award

2014

NIDA, Women & Sex/Gender Differences Junior Investigator Travel Award

2014

International Women's/Children's Health & Gender Working Group, Travel Award

2014

Patterson Trust, Awards Program in Clinical Research

2013

Connecticut Infectious Disease Society, Thornton Award for Clinical Research

2011

Bristol Myers-Squibb, Virology Fellows Award

1

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2101 oPfa2g3eP1a1goefID23#: 1024
Jaimie Meyer, MD, MS, FACP

2006 2005 2005 2000 2000

NY Columbia Presbyterian, John N. Loeb Intern Award American Medical Women’s Association, Medical Student Citation Connecticut State Medical Society, Medical Student Award Dartmouth College, Hannah Croasdale Senior Award Dartmouth College, Palaeopitus Senior Leadership Society Inductee

Yale University

2014

Women’s Faculty Forum, Public Voices Thought Leadership Program Fellow

Grants/Clinical Trials History:

Current Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Center for Interdisciplinary Research on AIDS (CIRA) 2019-20 Pilot Project Awards Optimizing PrEP’s Potential in Non-Clinical Settings: Development and Evaluation of a PrEP Decision Aid for Women Seeking Domestic Violence Services Tiara Willie Principal Investigator 2% $29,993.00
$29,993.00 7/11/2019 - 7/10/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

SAMHSA H79 TI080561 CHANGE: Comprehensive Housing and Addiction Management Network for Greater New Haven Principal Investigator 20% $389,054.00
$1,933,368.00 11/30/2018 - 11/29/2023

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project

Gilead Sciences, Inc. Investigator Sponsored Award, CO-US-276-D136 Delivering HIV Pre-Exposure Prophylaxis to Networks of Justice-Involved Women Principal Investigator 8% $81,151.00

2

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2102 oPfa2g3eP1a2goefID23#: 1025
Jaimie Meyer, MD, MS, FACP

period: Project period:

$306,199.00 6/19/2018 - 1/31/2020

Agency: I.D.#: Title: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA R21 DA042702 Prisons, Drug Injection and the HIV Risk Environment Principal Investigator 22% $129,673.00
$358,276.00 8/1/2017 - 7/31/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Doris Duke Charitable Foundation Clinical Scientist Development Award Developing and Testing the Effect of a Patient-Centered HIV Prevention Decision Aid on PrEP uptake for Women with Substance Use in Treatment Settings Principal Investigator 27% $149,959.00
$493,965.00 7/1/2017 - 6/30/2020

Past Grants Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA K23 DA033858 Evaluating and Improving HIV Outcomes in Community-based Women who Interface with the Criminal Justice System Principal Investigator 75% $149,509.00
$821,147.00 7/1/2012 - 11/30/2017

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year:

Robert Leet & Clara Guthrie Patterson Trust R12225, Award in Clinical Research Disentangling the Effect of Gender on HIV Treatment and Criminal Justice Outcomes Principal Investigator 10% $75,000.00

3

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2103 oPfa2g3eP1a3goefID23#: 1026
Jaimie Meyer, MD, MS, FACP

Total costs for project

period:

$75,000.00

Project period:

1/31/2014 - 10/31/2015

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Bristol-Myers Squibb HIV Virology Fellowship Award Effect of newer antiretroviral regimens on HIV biological outcomes in HIVinfected prisoners: a 13 year retrospective evaluation Principal Investigator 10% $34,390.00
$34,390.00 12/1/2011 - 11/30/2012

Pending Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIMH R01 MH121991 Identifying Modifiable Risk and Protective Processes at the Day-Level that Predict HIV Care Outcomes among Women Exposed to Partner Violence Sullivan, Tami Principal Investigator 30% $499,755.00
$4,148,823.00 1/1/2020 - 12/31/2024

Invited Speaking Engagements, Presentations, Symposia & Workshops Not Affiliated With Yale:
International/National 2019: CME Outfitters, Washington, DC. "A Grassroots Approach to Weed out HIV and HCV in Special
OUD Populations" 2019: US Commission on Civil Rights, Washington, DC. "An Analysis of Women’s Health, Personal
Dignity and Sexual Abuse in the US Prison System" 2018: College of Problems on Drug Dependence, College of Problems on Drug Dependence, San
Diego, CA. "Research on Women who Use Drugs: Knowledge and Implementation Gaps and A Proposed Research Agenda" 2018: Clinical Care Options, Washington, DC. "Intersection of the HIV and Opioid Epidemics" 2016: Dartmouth Geisel School of Medicine, Hanover, NH. "Incarceration as Opportunity: Prisoner Health and Health Interventions" 2010: Rhode Island Chapter of the Association of Nurses in AIDS Care, Providence, RI. "HIV and Addiction"

4

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2104 oPfa2g3eP1a4goefID23#: 1027
Jaimie Meyer, MD, MS, FACP
Regional 2018: Clinical Directors Network, New York, NY. "PrEP Awareness among Special Populations of
Women and People who Use Drugs" 2018: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "HIV prevention for
justice-involved women" 2017: Clinical Directors Network, New York, NY. "Optimizing the HIV Care Continuum for People who
use Drugs" 2016: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "Topics in Infectious
Diseases" 2016: Connecticut Advanced Practice Registered Nurse Society, Wethersfield, CT. "Trends in HIV
Prevention: Integration of Biomedical and Behavioral Approaches"
Peer-Reviewed Presentations & Symposia Given at Meetings Not Affiliated With Yale: International/National
2019: CPDD 81st Annual Scientific Meeting, CPDD, San Antonio, TX. "Punitive approaches to pregnant women with opioid use disorder: Impact on health care utilization, outcomes and ethical implications"
2019: 14th International Conference on HIV Treatment and Prevention Adherence, IAPAC Adherence, Miami, FL. "Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant?"
2019: 2019 NIDA International Forum, NIDA, San Antonio, TX. "Diphenhydramine Injection in Kyrgyz Prisons: A Qualitative Study Of A High-Risk Behavior With Implications For Harm Reduction"
2019: 11th International Women’s and Children’s Health and Gender (InWomen’s) Group, InWomen’s Group, San Antonio, TX. "Uniquely successful implementation of methadone treatment in a women’s prison in Kyrgyzstan"
2019: Harm Reduction International, Porto, Porto District, Portugal. "How does methadone treatment travel? On the ‘becoming-methadone-body’ of Kyrgyzstan prisons"
2019: APA Collaborative Perspectives on Addiction Annual Meeting, APA Collaborative Perspectives on Addiction Annual Meeting, Providence, RI. "Impact of Trauma and Substance Abuse on HIV PrEP Outcomes among Women in Criminal Justice Systems. Symposium: “Partner Violence: Intersected with or Predictive of Substance Use and Health Problems among Women.”"
2019: Society for Academic Emergency Medicine (SAEM), Worcester, MA. "Effects of a Multisite Medical Home Intervention on Emergency Department Use among Unstably Housed People with Human Immunodeficiency Virus"
2019: Conference on Retroviruses and Opportunistic Infections (CROI), IAS, Seattle, WA. "Released to Die: Elevated Mortality in People with HIV after Incarceration"
2019: 12th Academic and Health Policy on Conference on Correctional Health, 12th Academic and Health Policy on Conference on Correctional Health, Las Vegas, NV. "PrEP Eligibility and HIV Risk Perception for Women across the Criminal Justice Continuum in Connecticut"
2019: Association for Justice-Involved Female Organizations (AJFO), Atlanta, GA. "Treatment of Women’s Substance Use Disorders and HIV Prevention During and Following Incarceration"
5

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2105 oPfa2g3eP1a5goefID23#: 1028
Jaimie Meyer, MD, MS, FACP

2018: 2018: 2018: 2018:
2018: 2018: 2018: 2017: 2017: 2017: 2017: 2017: 2017: 2016: 2015:

American Public Health Association (APHA) Annual Meeting, American Public Health Association (APHA) Annual Meeting, San Diego, CA. "New Haven Syringe Service Program: A model of integrated harm reduction and health care services" 12th National Harm Reduction Conference, 12th National Harm Reduction Conference, New Orleans, LA. "Service needs and access to care among participants in the New Haven Syringe Services Program" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "HIV risk perceptions and risk reduction strategies among prisoners in Kyrgyzstan: a qualitative study" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "Methadone Maintenance Therapy Uptake, Retention, and Linkage for People who Inject Drugs Transitioning From Prison to the Community in Kyrgyzstan: Evaluation of a National Program" NIDA International Forum, NIDA, San Diego, CA. "HIV and Drug Use among Women in Prison in Azerbaijan, Kyrgyzstan and Ukraine" 2018 Conference on Retroviruses and Opportunistic Infections (CROI), CROI, Boston, MA. "From prison’s gate to death’s door: Survival analysis of released prisoners with HIV" 11th Academic and Health Policy on Conference on Correctional Health, Academic Consortium on Criminal Justice Health, Houston, TX. "Assessing Concurrent Validity of Criminogenic and Health Risk Instruments among Women on Probation in Connecticut" IDWeek: Annual Meeting of Infectious Diseases Society of America, Infectious Diseases Society of America, San Diego, CA. "Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons (Oral presentation)" International AIDS Society (IAS) Meeting, International AIDS Society, Paris, Île-de-France, France. "Late breaker: Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons" NIDA International Forum, NIDA, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "Assessing Receptiveness to and Eligibility for PrEP in Criminal Justice-Involved Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" Annual Meeting of the Society for Applied Anthropology, Society for Applied Anthropology, Santa Fe, NM. "Where rubbers meet the road: HIV risk reduction for women on probation (Oral presentation)" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Palm Springs, CA. "An Event-level Examination of Successful Condom Negotiation Strategies among College Women" CDC National HIV Prevention Conference, CDC, Atlanta, GA. "Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence (Oral presentation)"

6

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2106 oPfa2g3eP1a6goefID23#: 1029
Jaimie Meyer, MD, MS, FACP

2015: 2015: 2014: 2014: 2014: 2013: 2013: 2012: 2012: 2012: 2011:

International Harm Reduction Conference, International Harm Reduction, Kuala Lumpur, Federal Territory of Kuala Lumpur, Malaysia. "Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Phoenix, AZ. "Violence, Substance Use, and Sexual Risk among College Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" College on Problems in Drug Dependence (CPDD), College on Problems in Drug Dependence (CPDD), San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Boston, MA. "Longitudinal Treatment Outcomes in HIVInfected Prisoners and Influence of Re-Incarceration" HIV Intervention and Implementation Science Meeting, HIV Intervention and Implementation Science Meeting, Bethesda, MD. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Atlanta, GA. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index" 5th Academic and Health Policy Conference on Correctional Health, 5th Academic and Health Policy Conference on Correctional Health, Atlanta, GA. "Effects of Intimate Partner Violence on HIV and Substance Abuse in Released Jail Detainees" IAPAC HIV Treatment and Adherence Conference, IAPAC, Miami, FL. "Adherence to HIV treatment and care among previously homeless jail detainees"

Regional 2019: Connecticut Infectious Disease Society, New Haven, CT. "Preliminary Findings from a Novel
PrEP Demonstration Project for Women Involved in Criminal Justice Systems and Members of their Risk Networks" 2017: Connecticut Public Health Association Annual Conference, Connecticut Public Health Association, Farmington, CT. "The New Haven syringe services program" 2014: Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration"

7

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2107 oPfa2g3eP1a7goefID23#: 1030
Jaimie Meyer, MD, MS, FACP

2013: 2011:

Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Emergency Department Use by Released Prisoners with HIV"

Professional Service:
Peer Review Groups/Grant Study Sections 2019 - present Reviewer, NIDA, NIH Reviewer: RFA-DA-19-025: HEAL Initiative: Justice Community
Opioid Innovation Network (JCOIN) Clinical Research Centers 2019 - present Reviewer, Yale DCFAR Pilot Projects 2018 - present Reviewer, Center for Interdisciplinary Research on AIDS (CIRA) 2015 - present Reviewer, University of Wisconsin-Milwaukee Research Growth Initiative

Advisory Boards

2017

Advisor, HIV Prevention and Treatment in Cis-Gendered Women, Gilead Sciences, Inc.

Journal Service
Editor/Associate Editor 2019 - present Associate Editor, Journal of the International Association of Providers of AIDS Care
(JIAPAC), Section Editor: Sex and Gender Issues

Reviewer 2019 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, JAIDS Reviewer, Addiction Sci and Clin Pract Reviewer, Addictive Behav Reports Reviewer, AIDS Care Reviewer, Social Science and Medicine Reviewer, SpringerPlus Reviewer, Substance Abuse Treatment Prevention and Policy Reviewer, Women’s Health Issues Reviewer, Yale Journal of Biology and Medicine Reviewer, AIMS Public Health Reviewer, American Journal on Addictions Reviewer, American Journal of Epidemiology Reviewer, American Journal of Public Health Reviewer, Annals Internal Medicine Reviewer, BMC Emergency Medicine Reviewer, BMC Infectious Diseases Reviewer, BMC Public Health Reviewer, BMC Women’s Health

8

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2108 oPfa2g3eP1a8goefID23#: 1031
Jaimie Meyer, MD, MS, FACP

2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, Clinical Infectious Diseases Reviewer, Critical Public Health Reviewer, Drug and Alcohol Dependence Reviewer, Drug and Alcohol Review Reviewer, Epidemiologic Reviews Reviewer, Eurosurveillance Reviewer, Health and Justice (Springer Open) Reviewer, International Journal of Drug Policy Reviewer, International Journal of Prisoner Health Reviewer, International Journal of STDs and AIDS Reviewer, International Journal of Women’s Health Reviewer, JAMA Internal Medicine Reviewer, Journal of Family Violence Reviewer, Journal of General Internal Medicine Reviewer, Journal of Immigrant and Minority Health Reviewer, Journal of International AIDS Society Reviewer, Journal of Psychoactive Drugs Reviewer, Journal of Urban Health Reviewer, Journal of Women’s Health Reviewer, Open Forum Infectious Diseases Reviewer, PLoS ONE Reviewer, Public Health Reports

Professional Service for Professional Organizations
AAMC Group on Women in Medicine and Science (GWIMS) 2016 - present Member, AAMC Group on Women in Medicine and Science (GWIMS)

American College of Physicians 2016 - present Fellow, American College of Physicians 2013 - 2016 Member, American College of Physicians

American Medical Association 2005 - present Member, American Medical Association

American Medical Women’s Association 2011 - present Member, American Medical Women’s Association

American Society of Addiction Medicine 2009 - present Member, American Society of Addiction Medicine

9

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2109 oPfa2g3eP1a9goefID23#: 1032
Jaimie Meyer, MD, MS, FACP

Connecticut Infectious Disease Society 2011 - present Member, Connecticut Infectious Disease Society

Infectious Disease Society of America 2008 - present Member, Infectious Disease Society of America

InWomen’s Network, NIDA International Program 2013 - present Member, InWomen’s Network, NIDA International Program

New York State Medical Society 2005 - 2008 Member, New York State Medical Society

Yale University Service University Committees 2016 - 2018 Council Member, Leadership Council, Women’s Faculty Forum

Medical School Committees 2015 - 2016 Committee Member, US Health and Justice Course, Yale School of Medicine 2014 - present Committee Member, Yale Internal Medicine Traditional Residency Intern Selection
Committee

Public Service 2019 - present 2017 - present 2013 - present 2012 - present 2009 - 2011 2002 1998 - 1999

Faculty Member, Yale University Program in Addiction Medicine Faculty Member, Arthur Liman Center for Public Interest Law, Yale Law School Mentor, Women in Medicine at Yale Mentoring Program Faculty Member, Yale Center for Interdisciplinary Research on AIDS Instructor, Preclinical Clerkship Tutor, Yale School of Medicine Fellow, Soros Open Society Institute Fellow, Costa Rican Humanitarian Foundation

Bibliography:
Peer-Reviewed Original Research 1. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Emergency department use by released prisoners
with HIV: an observational longitudinal study. PloS One 2012, 7:e42416. 2. Chen NE, Meyer JP, Bollinger R, Page KR. HIV testing behaviors among Latinos in Baltimore City.
Journal Of Immigrant And Minority Health / Center For Minority Public Health 2012, 14:540-51. 3. Chitsaz E, Meyer JP, Krishnan A, Springer SA, Marcus R, Zaller N, Jordan AO, Lincoln T, Flanigan TP,
Porterfield J, Altice FL. Contribution of substance use disorders on HIV treatment outcomes and antiretroviral medication adherence among HIV-infected persons entering jail. AIDS And Behavior 2013, 17 Suppl 2:S118-27.

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Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2200 oPfa2g3eP2a0goefID23#: 1033
Jaimie Meyer, MD, MS, FACP
4. Chen NE, Meyer JP, Avery AK, Draine J, Flanigan TP, Lincoln T, Spaulding AC, Springer SA, Altice FL. Adherence to HIV treatment and care among previously homeless jail detainees. AIDS And Behavior 2013, 17:2654-66.
5. Althoff AL, Zelenev A, Meyer JP, Fu J, Brown SE, Vagenas P, Avery AK, Cruzado-Quiñones J, Spaulding AC, Altice FL. Correlates of retention in HIV care after release from jail: results from a multi-site study. AIDS And Behavior 2013, 17 Suppl 2:S156-70.
6. Williams CT, Kim S, Meyer J, Spaulding A, Teixeira P, Avery A, Moore K, Altice F, Murphy-Swallow D, Simon D, Wickersham J, Ouellet LJ. Gender differences in baseline health, needs at release, and predictors of care engagement among HIV-positive clients leaving jail. AIDS And Behavior 2013, 17 Suppl 2:S195-202.
7. Meyer JP, Wickersham JA, Fu JJ, Brown SE, Sullivan TP, Springer SA, Altice FL. Partner violence and health among HIV-infected jail detainees. International Journal Of Prisoner Health 2013, 9:124-41.
8. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Frequent emergency department use among released prisoners with human immunodeficiency virus: characterization including a novel multimorbidity index. Academic Emergency Medicine : Official Journal Of The Society For Academic Emergency Medicine 2013, 20:79-88.
9. Meyer JP, Cepeda J, Springer SA, Wu J, Trestman RL, Altice FL. HIV in people reincarcerated in Connecticut prisons and jails: an observational cohort study. The Lancet. HIV 2014, 1:e77-e84.
10. Meyer JP, Zelenev A, Wickersham JA, Williams CT, Teixeira PA, Altice FL. Gender disparities in HIV treatment outcomes following release from jail: results from a multicenter study. American Journal Of Public Health 2014, 104:434-41.
11. Meyer JP, Cepeda J, Wu J, Trestman RL, Altice FL, Springer SA. Optimization of human immunodeficiency virus treatment during incarceration: viral suppression at the prison gate. JAMA Internal Medicine 2014, 174:721-9.
12. Meyer JP, Cepeda J, Taxman FS, Altice FL. Sex-Related Disparities in Criminal Justice and HIV Treatment Outcomes: A Retrospective Cohort Study of HIV-Infected Inmates. American Journal Of Public Health 2015, 105:1901-10.
13. Boyd AT, Song DL, Meyer JP, Altice FL. Emergency department use among HIV-infected released jail detainees. Journal Of Urban Health : Bulletin Of The New York Academy Of Medicine 2015, 92:10835.
14. Shrestha R, Karki P, Altice FL, Huedo-Medina TB, Meyer JP, Madden L, Copenhaver M. Correlates of willingness to initiate pre-exposure prophylaxis and anticipation of practicing safer drug- and sexrelated behaviors among high-risk drug users on methadone treatment. Drug And Alcohol Dependence 2017, 173:107-116.
15. Peasant C, Sullivan TP, Weiss NH, Martinez I, Meyer JP. Beyond the syndemic: condom negotiation and use among women experiencing partner violence. AIDS Care 2017, 29:516-523.
16. Wickersham JA, Gibson BA, Bazazi AR, Pillai V, Pedersen CJ, Meyer JP, El-Bassel N, Mayer KH, Kamarulzaman A, Altice FL. Prevalence of Human Immunodeficiency Virus and Sexually Transmitted Infections Among Cisgender and Transgender Women Sex Workers in Greater Kuala Lumpur, Malaysia: Results From a Respondent-Driven Sampling Study. Sexually Transmitted Diseases 2017, 44:663-670.
17. Hoff E, Marcus R, Bojko MJ, Makarenko I, Mazhnaya A, Altice FL, Meyer JP. The effects of opioidagonist treatments on HIV risk and social stability: A mixed methods study of women with opioid use disorder in Ukraine. Journal Of Substance Abuse Treatment 2017, 83:36-44.
11

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2201 oPfa2g3eP2a1goefID23#: 1034
Jaimie Meyer, MD, MS, FACP
18. Rutledge R, Madden L, Ogbuagu O, Meyer JP. HIV Risk perception and eligibility for pre-exposure prophylaxis in women involved in the criminal justice system. AIDS Care 2018, 30:1282-1289.
19. Peasant C, Sullivan TP, Ritchwood TD, Parra GR, Weiss NH, Meyer JP, Murphy JG. Words can hurt: The effects of physical and psychological partner violence on condom negotiation and condom use among young women. Women & Health 2018, 58:483-497.
20. Loeliger KB, Altice FL, Desai MM, Ciarleglio MM, Gallagher C, Meyer JP. Predictors of linkage to HIV care and viral suppression after release from jails and prisons: a retrospective cohort study. The Lancet. HIV 2018, 5:e96-e106.
21. Odio CD, Carroll M, Glass S, Bauman A, Taxman FS, Meyer JP. Evaluating concurrent validity of criminal justice and clinical assessments among women on probation. Health & Justice 2018, 6:7.
22. Loeliger KB, Altice FL, Ciarleglio MM, Rich KM, Chandra DK, Gallagher C, Desai MM, Meyer JP. Allcause mortality among people with HIV released from an integrated system of jails and prisons in Connecticut, USA, 2007-14: a retrospective observational cohort study. The Lancet. HIV 2018, 5:e617-e628.
23. Loeliger KB, Meyer JP, Desai MM, Ciarleglio MM, Gallagher C, Altice FL. Retention in HIV care during the 3 years following release from incarceration: A cohort study. PLoS Medicine 2018, 15:e1002667.
24. Azbel L, Wegman MP, Polonsky M, Bachireddy C, Meyer J, Shumskaya N, Kurmanalieva A, Dvoryak S, Altice FL. Drug injection within prison in Kyrgyzstan: elevated HIV risk and implications for scaling up opioid agonist treatments. International Journal Of Prisoner Health 2018, 14:175-187.
25. Peasant C, Montanaro EA, Kershaw TS, Parra GR, Weiss NH, Meyer JP, Murphy JG, Ritchwood TD, Sullivan TP. An event-level examination of successful condom negotiation strategies among young women. Journal Of Health Psychology 2019, 24:898-908.
26. Ranjit YS, Azbel L, Krishnan A, Altice FL, Meyer JP. Evaluation of HIV risk and outcomes in a nationally representative sample of incarcerated women in Azerbaijan, Kyrgyzstan, and Ukraine. AIDS Care 2019, 31:793-797.
27. Rhodes T, Azbel L, Lancaster K, Meyer J. The becoming-methadone-body: on the onto-politics of health intervention translations. Sociology Of Health & Illness 2019, 41:1618-1636.
28. Olson B, Vincent W, Meyer JP, Kershaw T, Sikkema KJ, Heckman TG, Hansen NB. Depressive symptoms, physical symptoms, and health-related quality of life among older adults with HIV. Quality Of Life Research : An International Journal Of Quality Of Life Aspects Of Treatment, Care And Rehabilitation 2019.
Chapters, Books, and Reviews 29. Azar MM, Springer SA, Meyer JP, Altice FL. A systematic review of the impact of alcohol use
disorders on HIV treatment outcomes, adherence to antiretroviral therapy and health care utilization. Drug And Alcohol Dependence 2010, 112:178-93. 30. Meyer JP, Springer SA, Altice FL. Substance abuse, violence, and HIV in women: a literature review of the syndemic. Journal Of Women's Health (2002) 2011, 20:991-1006. 31. Meyer JP, Chen NE, Springer SA. HIV Treatment in the Criminal Justice System: Critical Knowledge and Intervention Gaps. AIDS Research And Treatment 2011, 2011:680617. 32. Springer SA, Spaulding AC, Meyer JP, Altice FL. Public health implications for adequate transitional care for HIV-infected prisoners: five essential components. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2011, 53:469-79.
12

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2202 oPfa2g3eP2a2goefID23#: 1035
Jaimie Meyer, MD, MS, FACP
33. Chen NE, Meyer JP, Springer SA. Advances in the prevention of heterosexual transmission of HIV/AIDS among women in the United States. Infectious Disease Reports 2011, 3.
34. Meyer J, Altice F. HIV in Injection and Other Drug Users. Somesh Gupta, Bhushan Kumar, eds. Sexually Transmitted Infections 2nd ed. New Delhi, India: Elsevier, 2012: 1061-80. ISBN 978-81312-2809-8.
35. Meyer JP, Althoff AL, Altice FL. Optimizing care for HIV-infected people who use drugs: evidencebased approaches to overcoming healthcare disparities. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2013, 57:1309-17.
36. Meyer J, Altice F. Chapter 47, Treatment of Addictions: Transition to the Community. Robert L. Trestman, Kenneth L. Appelbaum, Jeffrey L. Metzner, eds. Oxford Textbook of Correctional Psychiatry (Winner of the 2016 Guttmacher Award). Oxford University Press 2015. ISBN 9780199360574.
37. Meyer JP, Moghimi Y, Marcus R, Lim JK, Litwin AH, Altice FL. Evidence-based interventions to enhance assessment, treatment, and adherence in the chronic Hepatitis C care continuum. The International Journal On Drug Policy 2015, 26:922-35.
38. Mohareb A, Tiberio P, Mandimika C, Muthulingam D, Meyer J. Infectious Diseases in Underserved Populations. Onyema Ogbuagu, Gerald Friedland, Merceditas Villanueva, Marjorie Golden, eds. Current Diagnosis and Treatment- Infectious Diseases. McGraw-Hill Medical 2016.
39. Meyer JP, Womack JA, Gibson B. Beyond the Pap Smear: Gender-responsive HIV Care for Women. The Yale Journal Of Biology And Medicine 2016, 89:193-203.
40. Meyer JP, Muthulingam D, El-Bassel N, Altice FL. Leveraging the U.S. Criminal Justice System to Access Women for HIV Interventions. AIDS And Behavior 2017, 21:3527-3548.
41. Shrestha R, McCoy-Redd B, Meyer J. Pre-Exposure Prophylaxis (PrEP) for People Who Inject Drugs (PWID). Brianna Norton, Ed. The Opioid Epidemic and Infectious Diseases. Elsevier 2019.
42. Meyer JP, Isaacs K, El-Shahawy O, Burlew AK, Wechsberg W. Research on women with substance use disorders: Reviewing progress and developing a research and implementation roadmap. Drug And Alcohol Dependence 2019, 197:158-163.
Peer-Reviewed Educational Materials 43. The Fortune Society Reentry Education Project Detailing Kit. New York City Department of Health
and Mental Hygiene. October 2014 44. United Nations Office on Drugs and Crime. Vienna, Austria
Invited Editorials and Commentaries 45. Meyer JP. Capsule Commentary on Pyra et al., sexual minority status and violence among HIV
infected and at-risk women. Journal Of General Internal Medicine 2014, 29:1164. 46. Brinkley-Rubinstein L, Dauria E, Tolou-Shams M, Christopoulos K, Chan PA, Beckwith CG, Parker S,
Meyer J. The Path to Implementation of HIV Pre-exposure Prophylaxis for People Involved in Criminal Justice Systems. Current HIV/AIDS Reports 2018, 15:93-95. 47. Meyer JP. The Sustained Harmful Health Effects of Incarceration for Women Living with HIV. Journal Of Women's Health (2002) 2019, 28:1017-1018.
13

Case 3C:1a8s-cev1-0:2105-2c6v-0D18o0c3u-mAeKnHt 16D1o-c4umFeilnetd4023/2F5il/e2d0 03P/a1g6e/2203 oPfa2g3eP2a3goefID23#: 1036
Jaimie Meyer, MD, MS, FACP
Case Reports, Technical Notes, Letters 48. Paul J. Bullous pemphigoid in a patient with psoriasis and possible drug reaction: a case report.
Connecticut Medicine 2004, 68:611-5. 49. How J, Azar MM, Meyer JP. Are Nectarines to Blame? A Case Report and Literature Review of
Spontaneous Bacterial Peritonitis Due to Listeria monocytogenes. Connecticut Medicine 2015, 79:31-6. 50. Vazquez Guillamet LJ, Malinis MF, Meyer JP. Emerging role of Actinomyces meyeri in brain abscesses: A case report and literature review. IDCases 2017, 10:26-29. 51. Harada K, Heaton H, Chen J, Vazquez M, Meyer J. Zoster vaccine-associated primary varicella infection in an immunocompetent host. BMJ Case Reports 2017, 2017. 52. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Answer to December 2017 Photo Quiz. Journal Of Clinical Microbiology 2017, 55:3568. 53. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Photo Quiz: Peripheral Blood Smear in a Ugandan Refugee. Journal Of Clinical Microbiology 2017, 55:33133314. Scholarship In Press 54. Hoff E, Adams Z, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Justice and Autonomy: A systematic review of pregnancy planning intentions, needs, and interventions among women involved in US criminal justice systems. J Women’s Health
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P O Box 3952 Charleston WV 25339-3952

(304) 345-9246 www.acluwv.org

March 19, 2020

Commissioner Betsy Jividen Sent via email to betsy.jividen@wv.gov

Re: Request for COVID-19 Plans

Commissioner Jividen,

I am writing to follow up on the March 10, 2020 letter I sent requesting copies of any plans ODCR has in place to protect incarcerated individuals in the facilities under the Division’s Control from COVID-19. That includes, but is not limited to, plans relating to protecting the health of the incarcerated as well as any policies surrounding visitation restrictions and communication via phone, email, etc.

To date, I have not received an acknowledgment of receipt of the letter, responsive documents, or a denial.

West Virginia Code Section 29B-1-3 requires agencies to respond to requests for public records within five business days. Please provide the responsive documents by 12 p.m. March 20, 2020, or our organization will move forward to institute proceedings under Section 29B-1-3 for injunctive or declaratory relief in circuit court.

West Virginia’s Freedom of Information Act is “liberally construed with the view of carrying out” a policy of disclosure, while exemptions are to be narrowly construed. W. Va. Code §29B-1-1. Any party claiming that an exemption applies bears the burden of proving its applicability. See Daily Gazette v. W. Va. Dev. Office, 482 S.E.2d 180, 187 (W. Va. 1996). Documents regarding policies of public agencies after the policies have been formulated are not subject to the “internal memoranda or letters” exemption to the WV-FOIA provisions. See id. at 192. Finally, for any undisclosed or redacted records, we request a Vaughn index.

Thank you in advance for your prompt response. Please furnish all records to lstark@acluwv.org. You can reach me on my cell at 914-393-4614 with any questions.

Regards,

Loree Stark Legal Director, ACLU-WV

Case 3:18-cv-01526 Document 161-8 Filed 03/25/20 Page 1 of 2 PageID #: 1044

State of West Virginia
OFFICE OF THE SECRETARY DEPARTMENT OF MILITARY AFFAIRS AND PUBLIC SAFETY
Building 1, Suite W-400 1900 Kanawha Blvd., East Charleston, West Virginia 25305 Telephone: (304) 558-2930 Facsimile: (304) 558-6221

JEFF S. SANDY CFE, CAMS CABINET SECRETARY

THOMAS L. KIRK DEPUTY SECRETARY

Date: To: From: Re:

Friday, March 20, 2020 Loree Stark, ACLU Secretary Jeff Sandy, CFE, CAMS COVID-19 and W.Va. correctional facilities

As our fellow West Virginians and Americans continue to respond to COVID-19, be assured that our Division of Corrections and Rehabilitation and its prisons, jails and juvenile centers are committed to reducing risk and protecting the health and safety of our employees, populations, volunteers, contractors, and others who enter these facilities and do business with us.
DMAPS and DCR have taken numerous steps that represent our best judgment at the present time, informed by the U.S. Centers for Disease Control and Prevention, our own Department of Health and Human Resources, and other recognized authorities.
We have provided ample and continuing information, guidelines and expectations to all of our facility superintendents that address in considerable detail:
• employee and inmate education regarding COVID-19 • continued attention to proper hygiene and sanitation practices • increased emphasis on frequent cleaning and disinfection of high-touch areas • screening protocols for inmates, employees, and contractors • transportation and movement procedures • practices for sick employees • quarantine and isolation options.
To limit the flow of traffic in and out of our facilities, are working with the courts to utilize video court appearances whenever possible. We have also asked that our volunteers and state Department of Education personnel not return to our facilities at this time.

In addition, a new and comprehensive DCR COVID-19 policy takes effect today (March 20) that supersedes prior directives. Included in the updated policy are protocols and requirements that address the continued use of CDC-standardized screening procedures for inmates, employees and contractors. Employees and others upon entry to DCR facilities and office buildings must now also have their temperatures taken.

Case 3:18-cv-01526 Document 161-8 Filed 03/25/20 Page 2 of 2 PageID #: 1045
We will continue to update and augment these policies and procedures whenever warranted. All told, we have provided our superintendents, other administrators and staff with the information and flexibility they need to make the best decisions for the health and safety of everyone in their facilities.
You have likely heard that in an effort to limit exposure from outside sources, non-attorney visitation at all facilities remains halted until further notice. Until that visitation can resume, use of electronic visitation and telephone calls continues. The vendors who provide DCR's phone, kiosk and tablet services have all have agreed to provide weekly allotments of free phone calls and video visit sessions. We have also front-loaded important information about COVID-19, appropriate personal hygiene practices and other topics on the tablets and with the kiosks. This information is the first thing the inmates see when they try to access these devices. Of course, inmates can continue to send and receive letters and other correspondence through the U.S. Mail.
Of course, our facility leaders and staff continue to work closely with their respective contracted medical services providers, which have the personnel and protocols in place for these and other infectious diseases. And under the new policy, inmate medical co-pays have been suspended.
As for our employees, we have canceled all out-of-state travel and have encouraged video conferencing in lieu of in-person meetings and gatherings. All of our facilities have a supply of the appropriate surgical masks, and Gov. Justice announced on Thursday that corrections will receive a portion of the 100,000 N95 masks procured by the state this week.
Please know that your support has been crucial to the success of this department and its Division of Corrections and Rehabilitation. I very much appreciate your inquiry, and agree that we must ensure that all West Virginia are kept from harm’s way. I know that you and your fellow legislators will help us achieve that vital mission.

 
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 Case 3:18-cv-01526 Document 166 Filed 03/27/20 Page 1 of 2 PageID #: 1065

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al, on their own behalf and on behalf of all others similarly situated,

Plaintiffs, v.
BETSY JIVIDEN, in her official capacity as Commissioner of the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, et al,

Civ. Act. No. 3:18cv01526 (Chambers, J.)

Defendants.

PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR EMERGENCY MOTION FOR PRELIMINARY INJUNCTION REGARDING
DEFENDANTS’ PREVENTION, MANAGEMENT, AND TREATMENT OF COVID-19

Plaintiffs file this notice of supplemental authority in support of their recently filed

motion requesting that the Court ensure that inmates in the prisons and jails are properly

protected from illness and death from the present COVID-19 pandemic [Doc. 161]. Plaintiffs

attach hereto an order issued yesterday in Basank v. Decker, 20 Civ. 2518 (S.D.N.Y. Mar. 26,

2020), granting a temporary restraining order for the immediate release of detainees with chronic

medical conditions due to their imminent risk of death or serious injury in detention if exposed to

COVID-19. This order sets forth substantially basis and reasoning regarding the risks to

individuals held in jails and other detention facilities, and cites numerous supporting sources that

will provide assistance to the Court in considering the present motion. Plaintiffs further attach a

March 26, 2020, memorandum from the United States Attorney General to the Bureau of Prisons

requiring transfer of inmates in the federal prison system to home confinement, recognizing the

risks associated with COVID-19 for vulnerable inmates of prisons and jails. Each of these

documents supports the relief requested by Plaintiffs in their motion, including release of

sufficient inmates to ensure the health and safety of West Virginia inmates, correctional staff,

1

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and communities during this pandemic.
/s/ Jennifer S. Wagner Lydia C. Milnes (State Bar No. 10598) Jennifer S. Wagner (State Bar No. 10639) Rachel J. Kincaid (State Bar No. 13726) Mountain State Justice, Inc. 325 Willey Street Morgantown, WV 26505 Phone: (304) 326-0188 Facsimile: (304) 326-0189 lydia@msjlaw.org jennifer@msjlaw.org rkincaid@msjlaw.org Counsel for Plaintiffs

Respectfully submitted,
JOHN BAXLEY, JR., et. al., on behalf of themselves and other similarly situated inmates,
By Counsel:

2

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as Director of the New York Field Office of ICE, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO at 1, ECF No. 6.
For the reasons stated below, the TRO is GRANTED, and (1) Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities, are ORDERED to immediately release Petitioners today on their own recognizance, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
BACKGROUND Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. They are housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 3–4. Specifically, Petitioners Basank, Benitez Pineda, and Mazariegos are detained at the Hudson County Correctional Facility (“Hudson County Jail”). Petition ¶¶ 5, 7, 11. Petitioners Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez are detained at the Bergen County Correctional Facility (“Bergen County Jail”). Id. ¶¶ 6, 8, 9, 10, 12. Petitioners Pena and Picazo Nicolas are detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶¶ 13–14.1 Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, has underlying
1 During oral argument, Respondents represented to the Court that five Petitioners—Hernandez Balbuena, Legall, Menendez, Basank, and Benitez Pineda—are expected to be released today. However, because Petitioners are not yet released, and because counsel for Petitioners indicated, and Respondents did not dispute, that ICE may take as long as a day to complete the release process, the Court enters the TRO as to all Petitioners directing their immediate release today without fail.
2

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health conditions, including obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization for severe pneumonia. Id. ¶ 7. Hernandez Balbuena suffers from diabetes and diabetes-related complications. Id. ¶ 8. Legall is 33 years old, and suffers from respiratory problems, including asthma. Id. ¶ 9. Martinez, age 56, suffers from severe heart disease, and has a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez is 31 years old and suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease (“COPD”), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas, age 40, suffers from Type II diabetes and morbid obesity. Id. ¶ 14.
On March 16, 2020, Hannah McCrea, an attorney with Brooklyn Defender Services, emailed Assistant United States Attorney Michael Byars, requesting that ICE release particularly vulnerable individuals, including Petitioners Basank, Legall, Martinez, and Picazo Nicolas. Harper Decl. ¶ 2, ECF No. 6-1. On March 18, 2020, AUSA Byars responded that he did “not have a timeframe for ICE’s response.” Id. ¶ 3. On March 24, 2020, Alexandra Lampert, also a lawyer with Brooklyn Defender Services, emailed Byars to request the release of additional individuals identified as particularly vulnerable, including Petitioners Barrera Carrerro, Benitez Pineda, Hernandez Balbuena, Mazariegos, Menendez, and Pena. Id. ¶ 4. On March 25, 2020, Lampert again emailed Byars and informed him of Petitioners’ intent to seek a temporary restraining order in the Southern District of New York, with the amended petition attached, thus putting Respondents on notice of Petitioners’ serious medical conditions and their request for injunctive relief. Id. ¶¶ 5, 7.
3

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At 12:30 p.m. today, the Court held a telephonic hearing on Petitioners’ request for a TRO.
DISCUSSION I. Legal Standard
“A plaintiff seeking a temporary restraining order must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Natera, Inc. v. Bio-Reference Labs., Inc., No. 16 Civ. 9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted).
“It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). “The showing of irreparable harm is perhaps the single most important prerequisite for a preliminary injunction.” CF 135 Flat LLC v. Triadou SPY N.A., No. 15 Civ. 5345, 2016 WL 2349111, at *1 (S.D.N.Y. May 3, 2016) (internal quotation marks, citation, and alteration omitted). Under this prong, the movant “must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.” NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995). To satisfy this requirement, a movant must demonstrate “that he would suffer irreparable harm if the TRO does not issue.” Andino, 555 F. Supp. 2d at 419. “The district court has wide discretion in determining whether to grant a preliminary injunction.” Almontaser v. N.Y.C. Dep’t of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (internal quotation marks and citation omitted) (per curiam).
4

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II. Analysis A. Irreparable Harm
In the Second Circuit, a “showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotations and citations omitted). That harm must be “actual and imminent” rather than speculative. Id.
Petitioners have met their showing of irreparable harm, in establishing the risk of harm to their health and constitutional rights.
1. Risk of Death On March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a global pandemic. Petition ¶ 26. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Id. ¶ 27. Merely two weeks later, there have been at least 458,927 cases identified in 172 countries and at least 20,807 people have died. Id. New York and its surrounding areas have become one of the global epicenters of the outbreak. Id. ¶ 35. Petitioners are held at detention facilities located in northern New Jersey. See id. ¶¶ 5–14. As of March 26, 2020, New Jersey has 4,407 confirmed cases of COVID-19—the second highest number of reported cases by any state after New York. Niko Kommenda and Pablo Gutierrez, Coronavirus map of the US: latest cases state by state, THE GUARDIAN (Mar. 26, 2020), https://www.theguardian.com/world/ng-interactive/2020/mar/26/coronavirus-map-of-theus-latest-cases-state-by-state. New Jersey also has the fourth most COVID-19 related deaths in the country. Id. The three counties where the jails are located—Bergen, Essex, and Hudson counties—comprise one third of the confirmed cases of COVID-19 in New Jersey, with Bergen County reporting 819 positive results, Essex reporting 381 positives, and Hudson 260. Petition
5

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¶ 36. The jails are no exceptions. Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. Id. ¶ 41. This includes two detainees and one correctional officer in the Hudson County Jail; one detainee at the Bergen County Jail; and a “superior officer” at the Essex County Jail. Id.
The nature of detention facilities makes exposure and spread of the virus particularly harmful. Jaimie Meyer M.D., M.S., who has worked extensively on infectious diseases treatment and prevention in the context of jails and prisons, recently submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen County, and Essex County jails, “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
Moreover, medical doctors, including two medical experts for the Department of Homeland Security, have warned of a “tinderbox scenario” as COVID-19 spreads to immigration detention centers and the resulting “imminent risk to the health and safety of immigrant detainees” and the public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/ doctors-ice-detention-coronavirus/index.html. “It will be nearly impossible to prevent widespread infections inside the Hudson, Bergen, and Essex County jails now that the virus is in the facilities because detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’” Petition ¶ 47 (internal quotation marks and citation omitted).
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Petitioners face serious risks to their health in their confinement. Each has underlying illnesses, including asthma, diabetes, heart disease, hypertension, obesity and respiratory problems including COPD. Id. ¶¶ 5–14. The Court takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality. People at Risk for Serious Illness from COVID-19, CENTERS FOR DISEASE CONTROL (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019ncov/specific-groups/high-risk-complications.html (“Older people and people of all ages with severe underlying health conditions—like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness.”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, CENTERS FOR DISEASE CONTROL, (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlyingconditions.html (listing, among other medical diagnoses, “moderate to severe asthma,” “heart disease,” “obesity,” and “diabetes” as conditions that trigger higher risk of severe illness from COVID-19); see Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); Brickey v. Superintendent, Franklin Corr. Facility, No. 10 Civ. 085, 2011 WL 868148, at *2 n.3 (N.D.N.Y. Feb. 17, 2011) (taking judicial notice of the meaning and symptoms of the condition sciatica), report and recommendation adopted, 2011 WL 868087 (N.D.N.Y. Mar. 10, 2011); Lin v. Metro. Life Ins. Co., No. 07 Civ. 03218, 2010 WL 668817, at *1 (S.D.N.Y. Feb. 25, 2010) (“In its decision, the Court took judicial notice of certain medical background information about Hepatitis B.”).
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A number of courts in this district and elsewhere have recognized the threat that COVID19 poses to individuals held in jails and other detention facilities. See United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)); see also Letter from Mike McGrath, Chief Justice, Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/ 189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver=2020-0320-115517-333 (“Because of the high risk of transmittal of COVID-19, not only to prisoners within correctional facilities but staff and defense attorneys as well, we ask that you review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for nonviolent offenses. . . . Due to the confines of [correctional] facilities, it will be virtually impossible to contain the spread of the virus.”). Indeed, at least one court has ordered the release on bail of a non-citizen in immigration detention on the ground that detention conditions have been rendered unsafe by COVID-19. Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507. Addressing the situation in New Jersey specifically, the New Jersey Supreme Court has held that “reduction of county jail populations,
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under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19,” and has ordered the release of many individuals serving sentences in New Jersey county jails. In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020).
Courts have also recognized that health risk to be particularly acute—and of constitutional significance—for inmates who are elderly or have underlying illnesses. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk to his health the pandemic poses. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
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The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO. See Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable harm “premised . . . upon [the district court’s] finding that [plaintiff] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services . . . certainly constitutes irreparable harm.”).
2. Constitutional Violations Second, Petitioners have also shown irreparable harm because, as discussed below, they face a violation of their constitutional rights. In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm. See, e.g., Connecticut Dept. of Environmental Protection v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citations omitted)); Statharos v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary) (emphasis in original); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable harm by alleging that prolonged immigration detention violated his constitutional due process rights). The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the TRO.
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B. Likelihood of Success on the Merits The Court concludes that Petitioners have met their burden of showing a likelihood of success on the merits. Petitioners argue that their continued confinement in ICE detention centers where COVID-19 is present and without adequate protection for their health violates their due process rights. TRO at 8. The Court agrees. The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate’s “transfer while seriously ill” where that transfer posed a risk of fatal heart failure). Immigration detainees can establish a due process violation for unconstitutional conditions of confinement by showing that a government official “knew, or should have known” of a condition that “posed an excessive risk to health,” and failed to take appropriate action. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (“Deliberate indifference . . . can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” (internal quotation marks,
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citation, and alterations omitted)). The risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious.2 It can no longer be denied that Petitioners, who suffer from underlying illnesses, are caught in the midst of a rapidly-unfolding public health crisis. The Supreme Court has recognized that government authorities may be deemed “deliberately indifferent to an inmate’s current health problems” where authorities “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Petitioners need not demonstrate that “they actually suffered from serious injuries” to show a due process violation. Darnell, 849 F.3d at 31; see Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to their future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted).
Respondents have exhibited, and continue to exhibit, deliberate indifference to Petitioners’ medical needs. The spread of COVID-19 is measured in a matter of a single day—not weeks, months, or years—and Respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness. At oral argument, Respondents represented that ICE and the detention facilities in which Petitioners are housed are taking certain measures to prevent the spread of virus: screening detainees upon intake for risk factors, isolating detainees
2 Other courts have recognized of the heightened risk to detainees in contracting COVID-19. See, e.g., XochihuaJaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (unpublished) (“In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention . . . .”); Stephens, 2020 WL 1295155, at *2 (ordering “conditions of 24-hour home incarceration and electronic location monitoring”); Chris Villani, Releasing ICE Detainee, Judge Says Jail No Safer Than Court, Law360, March 25, 2020 (“We are living in the midst of a coronavirus pandemic, some infected people die, not all, but some infected people die,” U.S. District Judge Wolf said. “Being in a jail enhances risk. Social distancing is difficult or impossible, washing hands repeatedly may be difficult. There is a genuine risk this will spread throughout the jail.”).
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who report symptoms, conducting video court appearances with only one detainee in the room at a time, providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.
These measures are patently insufficient to protect Petitioners. At today’s hearing, Respondents could not represent that the detention facilities were in a position to allow inmates to remain six feet apart from one another, as recommended by the CDC. See How to Protect Yourself, CENTERS FOR DISEASE CONTROL (Mar. 18, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/prepare/prevention.html. Nor could Respondents provide the Court with any information about steps taken to protect high-risk detainees like Petitioners. And though Respondents represented that the detention facilities are below their full capacity, the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances. Confining vulnerable individuals such as Petitioners without enforcement of appropriate social distancing and without specific measures to protect their delicate health “pose[s] an unreasonable risk of serious damage to [their] future health,” Phelps, 308 F.3d at 185 (internal quotation marks and citation omitted), and demonstrates deliberate indifference.
The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health.3
C. Balance of Equities and Public Interest The equities and public interest weigh heavily in Petitioners’ favor. First, Petitioners face irreparable harm, to their constitutional rights and to their health.
3 The Court does not reach Petitioners’ additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because their current conditions of confinement are punitive. TRO at 8–9.
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Second, the potential harm to Respondents is limited. At today’s hearing, Respondents were unable to identify a single specific reason for Petitioners’ continued detention. And the Court finds that there is none. Petitioners’ counsel committed to ensuring the continued appearance of Petitioners at immigration hearings. And, of course, Petitioners’ failure to appear at those hearings would carry grave consequences for their respective cases. The Court finds that those incentives are sufficient to protect whatever interest Respondents may have in ensuring that Petitioners appear at future hearings and remain subject to the immigration laws.
At oral argument, Respondents raised the fact that Petitioners Martinez and Pena are currently mandatorily detained pursuant to 18 U.S.C. § 1226(c).4 However, courts have the authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). Thus, Respondents have failed to justify Petitioners’ continued detention in unsafe conditions.
Finally, the public interest favors Petitioners’ release. Petitioners are confined for civil violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public’s interest. See Declaration of Dr. Homer Venters ¶ 12, Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID19”); Declaration of Dr. Carlos Franco-Paredes, id. at ECF No. 81-12 at 1 (“Immigration detention centers in the U.S. are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19. Given the large population density of immigration detention centers and the ease of transmission of this viral
4 As represented by Petitioners’ counsel, Martinez’s § 1226(c) detention was triggered by his conviction for controlled substances trafficking in 2014, an offense for which he served no term of imprisonment. Pena’s § 1226(c) detention was triggered by misdemeanor marijuana convictions from 2002.
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pathogen, the attack rate inside these centers will take exponential proportions, consuming significant medical and financial resources.”); Urgent action needed to prevent COVID-19 “rampaging through places of detention” – Bachelet, UNHCR (Mar. 25, 2020), https://www.ohchr.org/en/NewsEvents/Pages/ DisplayNews.aspx?NewsID=25745&LangID=e (United Nations High Commissioners for Human Rights urging that detention of people in jails “should be a measure of last resort, particularly during this crisis”). To the contrary, public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions. See, e.g., Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”).
CONCLUSION For the reasons stated above, the TRO is GRANTED. Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities are ORDERED to immediately release Petitioners today on their own recognizance without fail. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. The TRO will expire on April 9, 2020, at 6:30 p.m. No later than April 2, 2020, at 12:00 p.m., Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may file a response no later than April 7, 2020, at 12:00 p.m. SO ORDERED. Dated: March 26, 2020, at 6:30 p.m. New York, New York
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 Case 3:18-cv-01526 Document 173 Filed 04/01/20 Page 1 of 21 PageID #: 1203

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al, on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

Civ. Act. No. 3:18cv01526

BETSY JIVIDEN, in her official capacity as Commissioner of the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, et al.

Defendants.

PLAINTIFF’S REPLY IN SUPPORT OF THEIR EMERGENCY MOTION [DOC. 161]

Plaintiffs merely seek to ensure that WVDCR adequately addresses the serious risk of a

COVID-19 outbreak in a WVDCR facility in order to protect putative class representatives and

others similarly situated from a serious risk of injury and death. In keeping with their failure to

communicate with Plaintiffs prior to filing of this motion, Defendants’ response to Plaintiffs’

motion refuses to acknowledge the seriousness of the situation, and instead asserts a series of

straw man legal arguments in order to avoid sharing or implementing a meaningful plan for

saving inmate and correctional officer lives. As explained further below, Defendants’ arguments

lack not just compassion, but also legal merit. Plaintiffs address each in turn.

I. Argument

A. The global COVID-19 pandemic is just the sort of extraordinary circumstance that justifies the extraordinary relief of a mandatory injunction.

Defendants are correct that mandatory injunctions are justified only in extraordinary

circumstances. See In re Microsoft Corp. Antitrust Litig., 333 F.3d at 526 (“Mandatory

preliminary injunctions generally do not preserve the status quo and normally should be granted

only in those circumstances when the exigencies of the situation demand such relief.”

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(alterations omitted)). But a global pandemic is just such an extraordinary circumstance that “demands such relief.” See id.; see also United States v. Martin, No. CR PWG-19-140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (recognizing “the unprecedented magnitude of the COVID-19 pandemic”). “On March 11, 2020, the World Health Organization declared COVID19 a global pandemic. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Merely two weeks later, there [were] at least 458,927 cases identified in 172 countries and at least 20,807 people ha[d] died.” Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1481503, at *2 (S.D.N.Y. Mar. 26, 2020) (internal citations omitted). Projections by the Centers for Disease Control and Prevention indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.5 million deaths in the most severe projections. Chas Danner, CDC’s Worst-Case Coronavirus Model: 214 Million Infected, 1.7 Million Dead, N.Y. Mag. (Mar. 13, 2020), https://nymag.com/intelligencer/2020/03/cdcs-worstcase-coronavirus-model-210m-infected-1-7mdead.html. “Although there is not yet a known outbreak among the jail and prison populations, inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.” United States of Am., v. Dante Stephens, Defendant., No. 15-CR-95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (citing, e.g., Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 1047, 1047 (Oct. 2007), https://doi.org/10.1086/521910 (noting that in jails “[t]he probability of transmission of potentially pathogenic organisms is increased by crowding, delays in medical evaluation and treatment, rationed access to soap, water, and clean laundry, [and] insufficient infection-control expertise”); Claudia Lauer & Colleen Long, US Prisons, Jails On Alert for Spread of Coronavirus, Associated Press (Mar. 7, 2020)). As a Maryland district court recently noted, correctional facilities may have “successfully dealt with past viruses and outbreaks of
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communicable diseases” but those outbreaks “pale in scope with the magnitude and speed of transmission of COVID-19.” See United States v. Martin, No. CR PWG-19-140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020). “With no known effective treatment, and vaccines months (or more) away, public health officials have been left to urge the public to practice ‘social distancing,’ frequent (and thorough) hand washing, and avoidance of close contact with others (in increasingly more restrictive terms)—all of which are extremely difficult to implement in a detention facility.” Id. As the result, a diverse group, including prosecutors and the United States Attorney General, has urged immediate action to slow the crisis. See, e.g., Letter from Judges and former AUSAs, available at https://fairandjustprosecution.org/; Letter from Public Health Officials, available at https://thejusticecollaborative.com/; Report on COVID-19, Prison Policy Initiative, https://www.prisonpolicy.org/blog/2020/03/27/slowpandemic/.
In the short period of time since the present motion was filed, the risks have dramatically increased as West Virginia has attempted to slow the outbreak. Demonstrating the speed with which infection travels in an institution, over the course of a week, twenty-nine people at Sundale Nursing Home in Morgantown, WV, were diagnosed with COVID-19. See “A WV Nursing Home Had 29 COVID-19 Cases,” Charleston Gazette-Mail (Mar. 31, 2020). On March 26, 2020, a sample national COVID-19 Plan was released to aid correctional facilities in ensuring an appropriate response. (Ex. A.) On March 27, the Supreme Court of Appeals of West Virginia has indicated that state courts and prosecutors work toward setting reduced bond for pretrial detainees to limit incarceration rates. (Ex. B.) Meanwhile—as is clear from its response brief—WVDCR has not made public any plans to control an outbreak, nor has it taken any action like that undertaken in other states to reduce overcrowding to ensure proper social distancing in DCR facilities. Indeed, as testimony will show, inmates report that they see little to no change in procedures related to the outbreak.
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As outlined below, and in Plaintiffs’ Emergency Motion, each of the factors that courts use when deciding whether to grant a preliminary injunction—even an extraordinary mandatory one—weighs in favor of relief here. See In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 170–71 (4th Cir. 2019), as amended (Oct. 31, 2019) (To prevail on a request for a preliminary injunction, “the plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm absent the requested preliminary relief, (3) the balance of the equities weighs in its favor, and (4) a preliminary injunction is in the public interest.”). That is especially so because “[i]n applying th[e] four-factor test [for preliminary injunctions], the irreparable harm to the plaintiff and the harm to the defendant are the two most important factors.” See In re Microsoft Corp. Antitrust Litig., 333 F.3d at 526 (alterations omitted). Here, the risk of harm to Plaintiffs is incredibly high, and the risk of harm to Defendants is minimal, if not nonexistent. See infra. As the result, the balance of equities clearly weighs in favor of the injunction, and the injunction should be granted.
1. The risk of irreparable harm is astronomically high. The grave risk of harm—including death—from COVID-19 on incarcerated populations who are not protected by a rigorous plan to prevent the spread of COVID-19 in the facilities where they are housed satisfies the irreparable harm standard for a preliminary injunction. Defendants do not dispute that the risk of COVID-19 presents a risk of irreparable harm to Plaintiffs. Defendants pivot, however, and claim that Plaintiffs should simply trust them that they intend to implement an appropriate plan—without any knowledge or information about what DCR’s purported plan would entail. Defendants claim that Plaintiffs’ concern that WVDCR’s undisclosed plan may be inadequate is insufficient to demonstrate irreparable harm.1
1 Defendants’ allegation in this context that Plaintiffs displayed a lack of candor to the court is wholly unfounded. Plaintiffs’ emergency motion states that Defendants responded to the American Civil Liberties Union’s request for information about WVDCR’s COVID-19 plan by “stating that DCR’s plan is exempt from disclosure to the public . . . but also attaching a letter that purports to outline the WVDCR’s COVID-19 response plan, with sensitive
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This is not the case. First, Plaintiffs merely seek to ensure that WVDCR adequately addresses the serious risk of a COVID-19 outbreak in a WVDCR facility. Plaintiffs would be thrilled to learn that WVDCR has already done so, if that is the case. Indeed, Plaintiffs attempted to avoid this motion and any diversion of resources via communication with Defendants about COVID-19. (See Defendants’ Exhibit 3.) Plaintiffs hope that Defendants already have an adequate plain in place to combat the COVID-19 pandemic, but, respectfully, cannot just take their word for it. Moreover, as Plaintiffs will show through testimony of inmates housed in WVDCR custody, Plaintiffs have more than a mere assumption that the plan is inadequate—in fact, according to individuals living in WVDCR institutions, WVDCR has taken essentially no measures to protect inmates in its care from infection and transmission of COVID-19.
The requirements of an appropriate plan are no mystery. Defendants are aware of a “COVID-19 Pandemic Response Plan” that has been circulated nationally, and which calls for specific measures to be taken to limit deaths from COVID-19 in prisons and jails. (See Ex. A.) Despite this publicly available document setting forth best practices, Defendants continue to refuse to provide any specific plan to assure Plaintiffs that appropriate and necessary actions are being taken to protect them. Instead, Defendants have provided an affidavit from Commissioner of the WVDCR, Betsy Jividen, which purports to describe the measures WVDCR has put into place regarding COVID-19.2 (See Response Exhibit 1.) Defendant Jividen references—but does not provide—a March 11, 2020 memorandum issued to all WVDCR employees. However, Defendant Jividen’s explanation of this memo provides no meaningful detail about the topics it purports to address. Moreover, the memo (according to the affidavit) does not appear to address
security information removed.” (See Emergency Motion at 6.) Plaintiffs then attached that correspondence to their Emergency Motion. Far from hiding WVDCR’s claim that they have a plan from the Court, Plaintiffs openly disclosed that fact in their motion. That Defendants’ allegations about candor directly contradict the text of Plaintiffs’ emergency motion is, at minimum, troubling.
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staffing and health care plans for when staff must stay home sick; staffing plans for when inmate workers must be quarantined; additional precautions for vulnerable populations; housing for inmates exposed to COVID-19; coordination with community hospitals for treatment of infected inmates; or techniques for social distancing including reducing prison populations. (See id.) The Jividen affidavit also states that on March 20, 2020, “WVDCR adopted a Policy Directive entitled ‘COVID-19 RESPONSE PLAN.’” (Id.) It provides even less detail with respect to the contents on that plan, so it is simply not possible to tell whether it address all of the areas that must be addressed in an appropriate plan to control an inevitable outbreak. (See Ex. __.) While Jividen further asserts that she “issued a memorandum to all facility superintendents and directors discussing ‘Interim Guidance from the Centers for Disease Control and Prevention,’” this guidance simply instructs institutions to address these issues, but is not an actual plan for implementing them, much less one specific to WVDCR facilities. (See Response Exhibit 2.)
In short, Defendants have provided insufficient evidence that there is no likelihood of harm to Plaintiffs. Defendants have presented no evidence that they have an adequate plan, nor do they present any evidence that such a plan has been effectively implemented before it is too late and infections begin overwhelming WVDCR facilities at an exponential rate. To the contrary, without a clear, robust, plan to address COVID-19, as well as a guarantee of adequate implementation of such a plan, Plaintiffs face serious consequences to their health and lives.
Turning to a legal strategy, rather than their clearly inadequate evidentiary one, Defendants cite a number of cases denying deliberate indifference claims against prison officials by inmates who contracted swine flu. (See Response at 14-15.) Each of those cases, by the Defendants’ own citations to them, rested their decision on the fact that the facility had taken reasonable steps to protect that inmate from infection and complications. The heart of Plaintiffs’
2 Defendants also make factual assertions in their Response regarding the contents of the WVDCR’s COVID-19
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request is to ensure that WVDCR has taken such measures. As of yet, Defendants have not provided evidence that WVDCR has done so. Short of that evidence, these cases are inapposite. Only after Defendants provide evidence of a plan will the question become whether that plan is “reasonable,” and whether it has actually been implemented. But there can be no discussion of those questions at this point because WVDCR has refused to share their plan, let alone evidence of its implementation.
Defendants argue that the mere “fear that they someday may be exposed to or contract COVID-19 is not sufficient” to establish a serious medical condition. Not only does such argument ignore all the evidence relating to the exceptional nature of the COVID-19 pandemic, it completely ignores Helling v. McKinney, 509 U.S. 25, 33-34 (1993), which clearly states that “the Eighth Amendment protects against future harm to inmates” and it would thus “be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” “[T]he Court of Appeals cases to the effect that the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering are legion.” Id. at 34 (emphasis added). To the extent that Defendants argue that the risk that the COVID-19 pandemic poses to incarcerated individuals is not sufficiently imminent to justify relief, Plaintiffs direct the Court’s attention to the expert affidavits they have provided to the Court, the other factual citations Plaintiffs have provided detailing the risk of COVID-19 to incarcerated populations, and the testimony Plaintiffs will present on April 2, 2020. Indeed, as experts and evidence in other states makes clear, the only real way to protect the inmate population in West Virginia is to implement a meaningful plan prior to infection and spread of the deadly disease.
2. Defendants will suffer no harm if the injunction is granted.
plan which are not supported by any document in the record. Plaintiffs will not address those factual assertions at this time because they have no evidentiary proof to support them.
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Defendants will suffer no harm if the injunction is granted. Developing a plan to prevent the spread of COVID-19 in West Virginia’s DCR facilities protects not only the inmate population, but all WVDCR employees, their families, and the community at large. Ultimately, an appropriate plan will reduce spread of the virus, death, and avoid overwhelming the already limited correctional and community health care systems. Defendants contend that Plaintiffs ask the Court to micromanage WVDCR’s response, but Plaintiffs have not drafted a plan themselves, nor have they asked the Court to draft a plan, they have merely requested that the Court order the Defendants to draft and implement a plan that addresses topics supported by the CDC guidance that WVDCR has already identified as valuable. If WVDCR has already done so, it will not be harmed by sharing that plan with Plaintiffs’ counsel and providing evidence that it is being adequately implemented. With respect to WVDCR’s security concerns about releasing its COVID-19 plan, Plaintiffs have already offered enter into a protective order that would limit release of any sensitive portions of the plan to the public and restrict such portions from viewing by any current inmates. This Court could enter a protective order with the appropriate level of restriction. As the result, Defendants have demonstrated no harm from the proposed injunction.
3. Plaintiffs’ requested relief is in the public interest. Developing and implementing a rigorous plan to combat COVID-19 is clearly in the public interest. First, such actions will help to halt the spread of COVID-19 in the jails and prisons, saving numerous lives. In addition, an outbreak in the jails or prisons would overwhelm community hospitals, thus eliminating already limited health care resources available to the general population. These actions would also serve WVDCR’s own employees and contractors, who will further be protected by implementation of an appropriate plan. Finally, such a plan will limit community spread of the virus outside the facilities, as it will help prevent WVDCR employees and contractors from bring the virus back to their own families and communities
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throughout the state.

Defendants focus their argument on public interest on Plaintiffs’ request for release of

inmates to allow for appropriate social distancing measures, pursuant to CDC guidelines, to be

implemented. Defendants claim that “premature mass release of inmates who are incarcerated by

virtue of being accused and/or convicted of a crime against the citizens of the State of West

Virginia” is not in the public interest. This misstates Plaintiffs’ request. Rather than seeking

random mass release, Plaintiffs seek sufficient release of inmates who are deemed a limited

public risk or who are at high risk for death from COVID-19. This request is consistent with

actions limited measures already being implemented in West Virginia. (See Ex. B.) It is also

consistent with actions taken by states and courts all over the country, as well as the federal

Bureau of Prisons. See e.g., The New York Times, “‘Jails Are Petri Dishes’: Inmates Freed as

the

Virus

Spreads

Behind

Bars,”

available

at

https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html; ABC 7 News, “130

inmates released early from Orange County jail system as 5 test positive for COVID-19,”

available

at,

https://abc7.com/orange-county-coronvirus-oc-jails-covid-19-cases-

coronavirus/6065898/; In re Request to Commute or Suspend County Jail Sentences, Docket No.

084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in county jail "in

light of the Public Health Emergency" caused by COVID-19),

https://www.njcourts.gov/notices/2020/n200323a.pdf; Thakker v. Doll, No. 1:20-cv-480-JEJ

(Mar. 31, 2020) (granting TRO releasing high-risk immigration detainees from custody due to

the dangers of COVID-19) (attached); Basank v. Decker, No. 20-cv-2518, (S.D.N.Y. Mar. 26,

2020) ("[t]he nature of detention facilities makes exposure and spread of the [coronavirus]

particularly harmful" so granting TRO and releasing high-risk plaintiffs),

https://www.nysd.uscourts.gov/sites/default/files/2020-03/20-cv-

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2518%20Basank%20v.%20Decker%20et%20al.pdf; Coronel v. Decker, 20-cv-2472-AJN, Dkt.
No. 26 (S.D.N.Y. Mar. 27, 2020) (granting TRO and releasing from immigration detention
facility in light of COVID-19), https://www.nysd.uscourts.gov/sites/default/files/2020-03/20-cv-
2518%20Basank%20v.%20Decker%20et%20al.pdf.3 The measures currently being taken in
West Virginia, however, do not address the life-threatening nature of this virus to inmates with
significant underlying conditions, such as asthma, COPD, cancer, HIV, heart disease, and a
myriad of other conditions that have been demonstrated to lead to higher mortality rates among
those who contract COVID-19, as set forth in Plaintiffs’ opening brief. (See Doc. 161 at 3-4.)
Now is the time to undertake these measures in a thoughtful and considered way—prior to a
coming outbreak in the inmate population, when it will be too late.
There has been no indication that temporarily releasing low-risk offenders, such as those
who are incarcerated for non-violent crime, elderly, ill, or close to being released anyway, has
3 See also, e.g., Xochihua-James v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (unpublished) (sua sponte releasing detainee from immigration detention "[I]n light of the rapidly escalating public health crisis"); United States v. Meekins, Case No. 1:18-cr-222-APM, Dkt. No. 75 (D.D.C. Mar. 31, 2020) (post-plea, pre-sentence release order releasing defendant with three pending assault charges due to extraordinary danger COVID-19 poses to folks in detention); United States v. Davis, No. 1:20-cr-9-ELH, Dkt. No. 21 (D. Md. Mar. 30, 2020) (releasing defendant due to the "urgent priority" of decarcerating, to protect both the defendant and the community, and to preserve Sixth Amendment rights in this perilous time); United States v. Marin, No. 15-cr-252, Dkt. No. 1326 (E.D.N.Y. Mar. 30, 2020) ("[F]or the reasons stated in his motion, including his advanced age, significantly deteriorating health, elevated risk of dire health consequences due to the current COVID-19 outbreak, status as a non-violent offender, and service of 80% of his original sentence."); United States v. Muniz, Case No. 4:09-cr-199, Dkt. No. 578 (S.D. Tex. Mar. 30, 2020) (releasing defendant serving 188-month sentence for drug conspiracy in light of vulnerability to COVID-19: "[W]hile the Court is aware of the measures taken by the Federal Bureau of Prisons, news reports of the virus's spread in detention centers within the United States and beyond our borders in China and Iran demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable to infection."); Fraihat v. Wolf, No. 20-CV-590 (C.D. Cal. Mar. 30, 2020) (noting risk of asymptomatic spread and unsafe conditions in immigration detention mean "[t]he balance of equities tip sharply in [Fraihat's] favor" and thus ordering release); United States v. Bolston, Case No. 1:18-cr-382-MLB, Dkt. No. 20 (N.D. Ga. Mar. 30, 2020) (releasing defendant in part because "the danger inherent in his continued incarceration at the R.A. Deyton Detention Facility . . . during the COVID-19 outbreak justif[y] his immediate release from custody"); United States v. Hector, Case No. 2:18-cr-3002, Dkt. No. 748 (W.D. Va. Mar. 27, 2020) (granting release pending sentencing after Fourth Circuit remanded detention decision requiring court to specifically consider extraordinary danger posed by COVID-19 to folks in prison); United States v. Jaffee, No. 19-cr-88 (D.D.C. Mar. 26, 2020) (releasing defendant, citing "palpable" risk of spread in jail and "real" risk of "overburdening the jail's healthcare resources"; "the Court is . . . convinced that incarcerating the defendant while the current COVID-19 crisis continues to expand poses a greater risk to community safety than posed by Defendant's release to home confinement"); United States v. Underwood, Case No. 8:18-cr-201-TDC, Dkt. No. 179 (Mar. 31, 2020) (encouraging release to furlough of elderly defendant in BOP custody because, even though no positive of COVID-19 in his facility, "there is significant potential for it to enter the prison in the near future").
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posed any risk to the public in the states where inmates have been released. Moreover, the benefit to the public of controlling an outbreak of COVID-19 in this state with a highly vulnerable population of elderly people and those with pre-existing respiratory illness—many of whom are caring for their grandchildren—is immeasurable, both in terms of the lives of our State’s residents and the long-term economic impacts of any substantial outbreak in West Virginia. Plaintiffs’ request—for Defendants to develop and implement an appropriate plan to control the outbreak and resulting loss of life—is clearly in the public interest.
4. WVDCR’s lack of plan to address the COVID-19 pandemic violates Plaintiffs’ constitutional right to be free from harm while in custody.
With respect to the third factor, the likelihood of success on the merits, failing to develop contingencies to address the extremely likely event of COVID-19 outbreaks in one or more of the West Virginia DCR facilities would violate the constitutional rights of Plaintiffs and others housed in DCR facilities. As the Supreme Court has explained, an inmate’s constitutional rights are violated by conditions that pose an unreasonable risk of future harm, even if that harm has not yet come to pass. See Helling, 509 U.S. at 33-34 and constitutional discussion, supra. That harm is encompassed by this lawsuit about the conditions of confinement overall in Western Regional Jail and the provision of medical and mental health care to inmates in WVDCR facilities.
B. Plaintiffs’ emergency motion relates directly to the subject matter of this lawsuit. Defendants claim that Plaintiffs’ motion is not within the scope of this lawsuit because
the complaint does not mention COVID-19. But, as this Court has previously recognized, “This putative class action arises from allegations that the West Virginia Department of Corrections and Rehabilitation (‘WVDCR’) has failed ‘to meet its minimum constitutional requirements of ensuring the safety and health of inmates in its custody.’” [Mem. Op. & Order at 2, Doc. 110, quoting 2nd Am. Compl., Doc. 67.] The issues raised in the present motion—that WVDCR has
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failed to meet its constitutional obligations of ensuring inmate health and safety during the current viral pandemic—clearly maps directly on to the claims raised in this litigation.
The cases Defendants cite for support of their argument that Plaintiffs cannot ask for injunctive relief regarding COVID-19 because their complaint does not mention COVID-19 are inapposite. In Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 (4th Cir. 2009), the Fourth Circuit held that the plaintiff could not raise a new instance of defamation that was not pleaded before the district court in his appeal of the district court’s grant of summary judgment. In Barclay White Skanska, Inc. v. Battelle Mem’l Inst., 262 F. App’x 556, 563-64 (4th Cir. 2008), the Fourth Circuit affirmed the district court’s grant of summary judgment on a particular issue that they held had not been effectively pleaded because plaintiffs are not permitted to add claims at the summary judgment stage without amending their complaint. This rule is at least in a part, a rule of fairness. It would be unfair to expect defendants to respond to a new claim raised only at the summary judgment or appellate stage without having the opportunity to engage in discovery on that claim. See Barclay White Skanska, Inc, 262 F. App’x at 564 (“[Plaintiff]’s failure to include the disputed change orders in its Amended Complaint deprived [Defendant] of the opportunity to have discovery on this issue.”). No such concern arises here, where Plaintiffs are asking for a preliminary injunction because of a new viral pandemic which implicates the very same legal claims that were raised in Plaintiffs’ complaint.
C. Plaintiffs’ requested relief is available and appropriate. Defendants cite a number of Prison Litigation Reform Act (PLRA) sections, apparently
in an attempt to assert that Plaintiffs’ requested relief is impermissible. (See Response at 5-6.) Defendants fundamentally misunderstand the PLRA. First, Defendants contend that the Plaintiffs have not exhausted their administrative grievance remedies prior to filing this motion, which they contend is required by 42 U.S.C. § 1997e(a). The PLRA, however, requires the exhaustion
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of administrative remedies before filing an action; it does not require exhaustion prior to each motion filed. See id. As the result, the argument simply does not apply here.
Second, as to whether Plaintiffs exhausted prior to filing suit, “failure to exhaust available administrative remedies is an affirmative defense, not a jurisdictional requirement, and thus inmates need not plead exhaustion, nor do they bear the burden of proving it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Plaintiffs anticipate fully briefing the issue of presuit administrative exhaustion in response to any appropriate motion filed by Defendants, in accordance with the Court’s briefing schedule. In short—in relation to the question of whether Plaintiffs exhausted prior to filing this litigation, to the extent that the grievance process has been available to Plaintiffs (which it largely has not)—Plaintiffs have exhausted their grievances with relation to Defendants’ failure to provide adequate medical care during their incarceration.4
Furthermore, this emergency situation calls for an exception to the administrative exhaustion requirement. See Evans v. Saar, 412 F. Supp. 2d 519, 527 (D. Md. 2006) (declining to dismiss the case for non-exhaustion, because “given the shortness of time, [the] Court [was] unprepared to decide whether [plaintiff’s] failure to exhaust [was] attributable to his delay in filing his administrative claim or the State's delay in deciding it.”); Howard v. Ashcroft, 248 F. Supp. 2d 518, 533–34 (M.D. La. 2003) (holding that prisoner fighting transfer from community corrections to a prison did not have to exhaust where it was clear that her claim would be rejected, her appeal would take months, and that prison officials wanted to transfer her despite her pending appeal); Salesky v. Balicki, Civil No. 10–5158, 2010 WL 4973626, at *2–3 (D.N.J.
4 Of course, exhaustion does not need to be as specific as Defendants claim. In other words, exhaustion of the failure to provide adequate medical care is sufficient to cover the issues raised in the present motion, because these are the same constitutional issues. Wilcox v. Brown, 877 F.3d 161, 167 n.4 (4th Cir. 2017) (“to satisfy the exhaustion requirement, grievances generally need only be sufficient to “alert[ ] the prison to the nature of the wrong for which redress is sought.”); Langley v. Huntington Police Dept, No. 3:17-CV-03520, 2018 WL 652866, at *15 (S.D.W. Va. Jan. 9, 2018), report and recommendation adopted sub nom. Langley v. Huntington Police Dep't, No. CV 3:17-3520, 2018 WL 650208 (S.D.W. Va. Jan. 31, 2018) (same); Wilson v. Frame, No. 2:19-CV-00103, 2020 WL 1482145, at *5 (S.D.W. Va. Mar. 23, 2020) (same).
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Nov. 29, 2010) (unpublished) (holding that a case could go forward despite non-exhaustion to avoid irreparable harm when prisoner alleged that his cancer had gone untreated for six months).
Defendants also claim that no preliminary injunction is permitted under 18 U.S.C. § 3626(a)(2) unless the court has given “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief[.]” As discussed throughout Plaintiffs’ Emergency Motion and this Reply, the requested relief is in the best interest of public safety because it will help to prevent the spread of COVID-19 in West Virginia and consequently help to prevent overwhelming West Virginia’s health care facilities with cases of COVID-19. Defendants are correct that no preliminary injunction under 18 U.S.C. § 3626(a)(2) can extend beyond ninety days “unless the court makes the findings required under [the statute] for the entry of prospective relief and makes the order final before the expiration of the 90-day period” but that is not a reason that the Court cannot order the requested preliminary injunction here. Indeed, with any luck, ninety days shall be a sufficient period of time to ensure that a proper plan has been implemented and allow the grave risk of the pandemic to pass. As the result, this argument also fails.
Defendants go on to assert that the Court may only order relief that “extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right[.]”Defendants do not articulate what part of Plaintiffs’ requested relief goes further than necessary. Indeed, Plaintiffs’ proposed relief is narrowly tailored to the constitutional violation here, and cleaves carefully to that relief adopted in other states. (See Ex. A.) As a result, this argument fails.
Plaintiffs further clearly do not ask the Court to “micromanage the West Virginia prisons and Regional Jails.” (See Response at 6.) Rather, Plaintiffs simply request that the Court order Defendants to prepare an appropriate plan to protect Plaintiffs and other inmates from life-
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threatening infection and death. Defendants cite O’Dell v. Netherland, 112 F.3d 773, 776-77 (4th Cir. 1997); this case is simply inapposite. O’Dell dealt with an order by a district court that a death row inmate be allowed to have contact visits—meaning, allowing touching and no supervision—with his paralegal, who also happened to be his wife, when she was acting as his paralegal (the inmate was permitted to have spousal visits with his wife when she was acting only as his spouse). See id. The Fourth Circuit stayed the district court’s order that the inmate be allowed to have contact visits with his wife when she was acting as his paralegal, pending appeal, and noted that the district court’s order had shown “little, if indeed any, deference to the prison warden’s reasonable judgment that, in the interest of prison security, [the inmate] should not be allowed contact visits from [his wife/paralegal].” O’Dell, 112 F.3d at 776. Defendants claim that Plaintiffs motion is a similar attempt to “micromanage” WVDCR policy. But O’Dell is inapposite here. Here, Plaintiffs merely request that the Court order Defendants to develop and implement a reasoned plan for dealing with a global pandemic. Plaintiffs have listed a number of relevant issues that plan should address, but have not attempted to dictate to the Court or Defendants how that plan should address those issues. The request at hand allows ample opportunity for WVDCR’s policy makers to exercise their “reasonable judgement . . . in the interest of prison security” about how to address the listed concerns. See O’Dell, 112 F.3d at 776.
Defendants go on to assert that this Court does not have authority to order Defendants to include a plan for release and social distancing in their COVID-19 response plan, pursuant to the PLRA and their own legal authority. (Response at 6.) Again, Defendants misunderstand the law. The PLRA does limit the ability of a court to “enter a prisoner release order” to certain specific circumstances and pursuant to certain procedures. See 18 U.S.C. § 3626(a)(3). However, just as Plaintiffs do not request that this Court draft a COVID-19 plan, Plaintiffs do not request that this Court enter a prisoner release order. Instead, Plaintiffs simply request that the Court order
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Defendants to exercise their statutory authority to grant furloughs and to present an appropriate plan to do so.
While DCR contends that it has no authority to release inmates within its custody and control, this is simply not the case. DCR ignores the statutory authority that it has been granted to create and operate a furlough program for inmates. Under section 15A-4-2 of the West Virginia Code, the Commissioner of the WVDCR is authorized to establish a furlough program for inmates, including both those housed as pretrial detainees and those committed to DCR’s custody for a felony offense. Moreover, the furlough program permits furloughed inmates to reside outside an institution. W. Va. Code § 15A-4-2(a).
First, the Commissioner is authorized to establish a furlough program for pretrial and misdemeanant inmates, through policy directive that require no formal review or legislative process. § 15A-4-2(b). The only limitations placed on such a program requires that the Commissioner must “establish[] criteria for which inmates are not likely to jeopardize public safety,” as well as other guidelines necessary to ensure public safety. § 15A-4-2(b)(2), (3). While the program may include furloughs for purposes of visiting terminally ill family members or attending funerals, the program is not limited to these circumstances. § 15A-4-2(b)(1). Accordingly, DCR has the clear authority—and in this situation, the responsibility—to create a program that temporarily releases inmates who have chronic illness, underlying health conditions, are elderly, pregnant, and/or who have little time left on their sentences, where such inmates have a safe environment to which they can be released, and who do not pose a threat to public safety, in order to reduce crowding within the DCR facilities and reduce the threat of loss of life and significant illness due to an outbreak of COVID-19 in the jail and prison system.
In addition, the Commissioner has been authorized by the Legislature to create a furlough program for convicted felons through legislative rule. § 15A-4-2(a). Despite this statute having
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become effective as of July 1, 2018, Defendants have failed to promulgate legislative rules to create a furlough program for inmates convicted of felony offense. As part of a COVID-19 response plan, it would be wholly appropriate for this Court to order Defendants to utilize its statutory authority to promulgate legislative rules to create a furlough program to address the threat of death presently posed by the COVID-19 pandemic. Such action would be consistent with, and further, the actions already taken by the West Virginia Supreme Court of Appeals and Executive Branch. (See Ex. B.)
Importantly, Plaintiffs motion does not ask this Court to order the release of inmates. Rather, it seeks that this Court require Defendants to create and implement a plan to ensure the protection of and care for inmates faced with infection by COVID-19. As recommended by best practices, this plan should necessarily include (but certainly not be limited to) utilization of all available methods to ensure that DCR facilities maintain sufficient space to ensure proper social distancing measures, including release of appropriate inmates. It is well within DCR’s authority to undertake such measures, and Plaintiffs simply request that the Court order it to do so. Because this is wholly appropriate—and indeed required—by both statute and constitutional standards, Plaintiffs request that their motion be granted.
D. Defendants’ “kit motion” argument is nothing more than a red herring with no legal support. Defendants’ response to Plaintiffs’ motion for relief spends a lot of pages on a red
herring: the apparently unthinkable fact that Plaintiffs’ counsel here have shared information and resources with other attorneys in the United States who are working to ensure that incarcerated individuals do not unnecessarily fall victim to the global pandemic because of their conditions of confinement. Defendants cite no legal authority for their implied contention that there is something nefarious about coordinating efforts with other advocates across the country during a global pandemic that will affect inmates in nearly identical ways across the country. They cite no
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legal authority for their implied contention, because no such authority exists. They similarly cite no legal authority for their implied contention that attaching affidavits of experts that have been used in other litigation is somehow wrong. Plaintiffs have not represented that these experts have looked at WVDCR facilities specifically. Their insights into the potential effects of the COVID19 pandemic in correctional facilities is nevertheless as relevant here as they are in other locations. As Defendants will surely agree, the nature of confinement in correctional facilities across the United States is substantially similar; there is no basis to suggest that inmates confined in WVDCR facilities are somehow immune to the risks of COVID-19 that inmates in other states face. Defendants have cited no authority—legal or otherwise—to suggest that Plaintiffs’ provision of expert reports on the general risks associated with institutional confinement during this global pandemic is a violation of law or ethics. Of course, it is impossible for Plaintiffs to present specific expert response to Defendants’ proposed plans, given that Defendants have refused to provide it. However, Plaintiffs’ national expert, Dr. Homer Venters, will be present at the April 2, 2020, hearing and will share his insights after hearing about the specific conditions in West Virginia from incarcerated individuals and DCR staff. While DCR opposed this effort, it should address any concern raised.
Similarly, Defendants’—once again, implied—contention that Plaintiffs have violated their duty of candor to this Court by not disclosing that a district court in the state of Washington denied a motion filed by attorneys and parties wholly unrelated to the case at issue, who requested the release of petitioners being held in civil detention by Immigration and Customs Enforcement in Tacoma, Washington, is nonsensical. The West Virginia Rules of Professional Conduct (which Defendants notably fail to cite) address attorneys’ duty of candor to the court with respect to legal authority in Rule 3.3(a)(2). The Rule states that “A lawyer shall not knowingly: . . . (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction
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known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]” WV R RPC Rule 3.3 (emphasis added). Defendants make no attempt to allege that Plaintiffs’ counsel knew about the result in Dawson v. Asher, No. C20-0409JLRMAT, 2020 WL 1304557, at *1 (W.D. Wash. Mar. 19, 2020) (though perhaps they intend to— once again—imply that knowledge because Plaintiffs’ motion borrows language from the motion filed in that case5). But more importantly, the Western District of Washington is not the controlling jurisdiction in this case, nor is a decision involving ICE detention facilities. Not “disclosing” a court’s denial of a motion there in a procedurally unrelated case can therefore not be a violation of the duty of candor here.
Beyond that, Defendants’ contention that the motion the Western District of Washington court rejected is “substantively identical” to Plaintiffs’ motion here is incorrect. The petitioners in Dawson were not involved in ongoing litigation against respondents about the lack of constitutionally minimum access to medical treatment and care; those petitioners are in ICE custody—not division of corrections custody, and they requested no other relief except their own release. Plaintiffs regret having to give this much space in their Reply brief to a response to these frivolous arguments. But Plaintiffs’ counsel take seriously allegations—even implied ones—of violations of the Rules of Professional Conduct.
E. Defendants’ contentions about FOIA are likewise a red herring. Finally, WVDCR suggests that Plaintiffs’ motion is nothing more than the manifestation
of “dissatisfaction with not being provided a copy of the COVID-19 Policy Directive” or relatedly, “nothing but an improper attempt to use this Court as a de facto appeal of the FOIA
5 The offending “identical” sections amounts to 1 paragraph in both briefs which contains two large block quotes from Helling v. McKinney, 509 U.S. 25 (1993), the premiere Supreme Court case on the constitutional implications of communicable disease outbreaks in correctional facilities. Other motions applying Helling’s constitutional reasoning to the current pandemic have been filed across the country, and some have been successful. See, e.g., Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); PEDRO BRAVO
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process.” (Response at 9, 3; see also id. at 20.) Defendants provide no basis for these claims. Plaintiffs merely attached correspondence between WVDCR and ACLU to show the Court what WVDCR has been willing to share publicly about its COVID-19 plan. Defendants appear to want it both ways: they object to the appending of this correspondence to Plaintiffs’ motion, but also accuse Plaintiffs of lack of candor to the court for not disclosing information that is in that correspondence (namely, that WVDCR says that it has a plan).
Regardless, it’s unclear why Defendants make this argument at all. Plaintiffs are actively involved in litigation against Defendants about the conditions of confinement and provision of medical care to inmates in WVDCR custody. Plaintiffs are not required to use FOIA to obtain documents that they are already entitled to via discovery in this case. Defendants do not even address Plaintiffs discovery request, referenced in Plaintiffs’ Emergency Motion, for “all policies, operating procedures, protocols, and/or directives governing the provision of medical and/or mental health care, including diagnosis and treatment, which have been in effect at any West Virginia Regional Jail facility since January 1, 2019.” (See Emergency Motion at 6 (citing Pl.’s 2d Set of Req,s for Prod. of Docs. to Defendants No. 11).) Defendants provide no basis for withholding WVDCR’s COVID-19 plan in light of this discovery request, and indeed acknowledge that Plaintiffs did in fact request this supplement—which Defendants refused, with no basis. (Defs.’ Ex. 3.)
Regardless, Defendants’ argument is simply an attempt to distract from the true issues raised in this motion: a request that Defendants appropriately and quickly respond to the real and present threats posed by the COVID-19 outbreak, and work to ensure that lives are not lost. Plaintiffs do not seek a document; rather, they seek actual action to protect themselves and those similarly situated who are within Defendants’ sole care and custody.
CASTILLO & LUIS VASQUEZ RUEDA., Petitioners, v. WILLIAM BARR, et al., Respondents, No.
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III. Conclusion As Courts and public officials around the country have recognized, lives are at immediate risk without appropriate meaningful action. As a result, Plaintiffs respectfully request that the Court order Defendants to create and implement an appropriate plan, as set forth herein and in their motion, to prevent the spread of COVID-19 and appropriately treat any impacted individuals.
JOHN BAXLEY, JR., et. al., on behalf of themselves and other similarly situated inmates, By Counsel:
/s/ Jennifer S. Wagner Lydia C. Milnes (State Bar No. 10598) Jennifer S. Wagner (State Bar No. 10639) Rachel J. Kincaid (State Bar No. 13726) Mountain State Justice, Inc. 325 Willey Street Morgantown, WV 26505 Phone: (304) 326-0188 Facsimile: (304) 326-0189 lydia@msjlaw.org jennifer@msjlaw.org rkincaid@msjlaw.org Counsel for Plaintiffs
CV2000605TJHAFMX, 2020 WL 1502864, at *3 (C.D. Cal. Mar. 27, 2020).
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COVID-19 Pandemic Response Plan
March 26, 2020
What’s New since the March 19, 2020 Version?
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) published “Interim Guidance On Management of COVID-19 in Correctional and Detention Facilities”. The guidance is very detailed and provides an excellent roadmap for correctional facilities responding to COVID-19. This version of the COVID-19 Pandemic Response Plan integrates most of the CDC guidance, as well as other infection prevention and control best practices.
Below are substantive updates primarily based on the new CDC guidance. All changes in this version are highlighted in YELLOW to facilitate recognition of What’s New. For readability, these highlights can all be removed In MSWORD® by going to the far-right ribbon of “Home” and “Select All”. Then go to the “Font” section and select ab (highlighter) and select “No Color” Element 1. Administration/Coordination: The purpose of this section is to provide step-by-step guidance for Chief Executive Officers and the leadership team of a correctional facility. It is now divided into two phases: Phase I. Preparation Steps for COVID-19 (for preparing for the possibility of COVID-19 in a facility); and Phase II. Response Steps for Managing COVID-19 (for steps to take once COVID-19 is identified in a staff person or incarcerated person). Phase I. Preparation Steps for COVID-19 § Emphasis is placed on coordinating with local law enforcement & court officials to reduce crowding:
o alternatives to in-person court appearances o maximize use of existing policies for alternatives to incarceration o expedite implementation of compassionate release policies o explore strategies to reduce new intakes to the correctional facility o explore strategies for releasing inmates at low risk for violent crime –particularly those with risk
factors for severe COVID-19 § A new section on personnel policies and practices was added. § The rest of this section tracks closely with the recommendations in Elements #2 - #13.
Phase II. Response Steps for Managing COVID-19 § The text in this section closely parallels the CDC guidance. § Reference this section once a case of suspected or confirmed COVID-19 is identified in a staff person or
incarcerated person.
Element 2 Communication: § Additional recommendations are added regarding signage throughout the facility. § Additional key communication messages for employees were added. § Communication message for incarcerated persons were added– that sharing drugs and drug preparation
equipment can spread COVID-19.
Element 3. General Prevention Measures: § Environmental Cleaning: More detail is provided regarding cleaning/disinfecting hard surfaces, soft (porous
surfaces), and electronics. Emphasis is placed on the need to clean dirty surfaces prior to disinfecting them. CDC is recommending use of household bleach solutions, alcohol solutions, EPA registered household disinfectants (so hospital-grade disinfectants are not required).
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COVID-19 Pandemic Response Plan
March 26, 2020
What’s New since the March 19, 2020 Version? (continued)
§ Social distancing measures: Additional examples of social distancing measures are included. § Infection prevention & control guidance for staff screening visitors, staff, and new intakes was added.
Element 4. Visitors / Volunteers / Contractors / Lawyers: § If visits are continuing, post signage to instruct visitors to postpone visits if respiratory illness. Screen visitors
for symptoms and a temperature prior to entry. § Attachment 1a. Visitor Screening form was added .
Element 5. Employee Screening: § Attachment 1b. Employee Screening form was revised.
Element 6. New Intake Screening: § Attachment 2. New Intake Screening form was revised.
Element 8. Personal Protective Equipment: § N95 respirators are generally preferred over face masks, if available. § Table 3. COVID-19 Personal Protective Equipment Recommendations provides an at-a-glance chart to
identify the type of PPE to be used in various situations. Consider posting this throughout your facility.
Element 10. Isolation (Symptomatic Persons): § Ideally isolation will occur in a private room with a bathroom attached. CDC provides guidance on the order of
preference for rooms for isolating inmates. Cohorting is a last resort option. § If possible, designated custody staff should be assigned to monitor isolated individuals to minimize exposures. § Specific guidance regarding handling isolation room laundry is provided. § Specific guidance regarding handling food service items is provided. § Information is provided regarding cleaning spaces where COVID-19 cases spent time.
Element 11. Care for the Sick: § Identify if ill persons have risk factors for COVID-19 complications. Those with increased risk should be
monitored more closely. § Implement telemedicine or provider-to-provider consultations for management of COVID-19
patients. Element 12. Quarantine: § Close contact to COVID-10 is defined and discussed § CDC recommends that close contacts be quarantined individually if feasible. Cohorting multiple quarantined
close contacts could result in transmission of COVID-19 to persons who are uninfected so should only be practiced if there are no other available options. § CDC provides guidance on the order of preference for rooms for quarantining inmates § CDC recommends that PPE for quarantine include: face mask, eye protection, gloves. A gown should be worn if close contact with a quarantined person is anticipated. § Attachment 4. Quarantine Room Sign was revised.
Element 13. Data Collection, Analysis and Reporting was added.
Element 14. Summary, Evaluation and Continuous Quality Improvement was added.
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COVID-19 Pandemic Response Plan
March 26, 2020
Plan Overview (March 16, 2020)
COVID-19 presents unique challenges for containment in the confined correctional environment. Knowledge about COVID-19 and public health guidance for responding to this Pandemic is evolving quickly. Adaptable and updatable practical tools are needed to develop infection prevention and control plans for COVID-19 across a diverse array of U.S. jails and prisons.
This COVID-19 Correctional Pandemic Response Plan provides an outline of infection prevention and control information that should be considered for correctional facilities related to a COVID-19 response. The plan outline is paired with a fillable MS WORD® Implementation Worksheet that can be easily customized to address local issues of concern for the facility and affected community.
The 1918-19 influenza pandemic provides important lessons for responding to COVID-19. During the 1918–19 influenza (“flu”) pandemic, certain cities fared better than others. Those U.S. cities that both acted promptly to control the flu and implemented multiple layers of protective measures had fewer flu cases and lower overall mortality. This VitalCore COVID-19 Correctional Response Plan includes multiple layers of protective measures to minimize the impact of the virus in the correctional environment.
The Response Plan is divided into 14 response elements. Each element is outlined in the plan with a corresponding section of the Implementation Worksheet. When completing the Worksheet, it is recommended to reference the corresponding text in the Response Plan. This worksheet can be readily adapted to meet the unique challenges of a specific facility.
This COVID-19 Correctional Response Plan is based upon current guidance from the CDC that is adapted for the correctional setting. It is anticipated that the CDC guidance will continue to change so the plan will require updating accordingly.
Effective response to the extraordinary challenge of COVID-19 is going to require that all disciplines in a correctional facility come together to develop, modify and implement plans as information and conditions change. Swift, decisive, yet evidenced-based planning is paramount. I hope you find this document useful in advancing our collective efforts to better ensure the health and safety of our correctional workers and our incarcerated patient populations.
Viola Riggin, CEO VitalCore Health Strategies Approved by: Lannette Linthicum, MD, VitalCore Medical Consultant Developed by: Sarah Bur, MPH, RN, VitalCore Consultant Newton E. Kendig, MD, VitalCore Consultant
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COVID-19 Pandemic Response Plan
March 26, 2020
Table of Contents
COVID-19 Overview.................................................................................................. 5 COVID-19 Pandemic Response Plan Elements........................................................... 6
1. Administration/Coordination ............................................................................. 6 2. Communication ................................................................................................ 10 3. General Prevention Measures.......................................................................... 11 4. Visitors / Volunteers / Contractors / Lawyers .................................................. 15 5. Employee Screening ......................................................................................... 15 6. New Intake Screening....................................................................................... 15 7. Initial Management and Testing of Cases of Respiratory Illness ..................... 16 8. Personal Protective Equipment (PPE) and Other Supplies ............................... 17 9. Transport .......................................................................................................... 20 10. Isolation (Symptomatic Persons) ................................................................... 20 11. Care for the Sick ............................................................................................ 22 12. Quarantine (Asymptomatic Exposed Persons)............................................... 23 13. Data Collection, Analysis & Reporting ........................................................... 24 14. Summary, Evaluation and Continuous Quality Improvement (CQI) .............. 25 COVID-19 Pandemic Response Plan Implementation Worksheet.............................26
Attachment 1a. COVID-19 Visitor Screening Form ..................................................37 Attachment 1b. COVID-19 Employee Screening Form .............................................38 Attachment 2. COVID-19 New Intake Screening Form ............................................39 Attachment 3. Respiratory Infection Isolation Room Sign ........................................40 Attachment 4. Quarantine Room Sign ....................................................................42 TABLE 3. COVID-19 Personal Protective Equipment Recommendations………………..19
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COVID-19 Pandemic Response Plan
March 26, 2020
COVID-19 Overview
This guidance provides general information regarding the COVID-19 pandemic and will be updated regularly.
What is Coronavirus Disease 2019 (COVID-19)? Coronavirus Disease 2019 (COVID-19) is a respiratory illness that can spread from person-to-person. The virus that causes COVID-19 is a Novel Coronavirus that was first identified during an investigation into an outbreak in Wuhan, China and is now causing an International Pandemic.
How is the virus causing COVID-19 transmitted? The virus is thought to spread mainly between people who are in close contact with one another (within approximately 6 feet) through respiratory droplets produced when an infected person coughs or sneezes. It also may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes.
What are the symptoms of COVID-19? Patients with COVID-19 have had mild to severe respiratory illness with symptoms of: § Fever § Cough § Shortness of breath Complications of COVID-19 can include pneumonia, multi-organ failure, and in some cases death.
How can I help protect myself? People can help protect themselves from respiratory illness with everyday preventive actions. § Avoid close contact with people who are sick. § Avoid touching your eyes, nose, and mouth with unwashed hands. § Wash your hands often with soap and water for at least 20 seconds. § Use an alcohol-based hand sanitizer that contains at least 60% alcohol if soap and water are not
available.
How long does it take for symptoms to develop? The estimated incubation period (the time between being exposed and becoming ill) averages 5 days after exposure with a range of 1-14 days.
Is there a vaccine? There is currently no vaccine to protect against COVID-19. The best way to prevent infection is to take everyday preventive actions, like avoiding close contact with people who are sick and washing your hands often.
Is there a treatment? There is no specific antiviral treatment for COVID-19. People with COVID-19 can seek medical care to help relieve symptoms.
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COVID-19 Pandemic Response Plan
March 26, 2020
COVID-19 Pandemic Response Plan Elements
1. Administration/Coordination
This section on Administration/Coordination is designed for use by Chief Executive Officers to provide a broad overview of the plan. The subsequent elements provide detailed information about how to implement the plan. This section is divided into two phases:
PHASE I. PREPARATION STEPS for COVID- 19 summarizes activities that all correctional facilities should be engaged in while preparing for the possibility of COVID-19 in the facility. These steps can be used as an outline for daily meetings about COVID-19 to quickly review the status of plan implementation.
PHASE II. RESPONSE STEPS for MANAGING COVID-19 summarizes activities that should be implemented after case(s) of suspected or confirmed COVID-19 have been identified in the facility in either a staff person or incarcerated person.
PHASE I. PREPARATION STEPS for COVID-19
a) Coordination of Facility Response § It is critically important that correctional and health care leadership meet regularly to review the current status of COVID-19, review updated guidance from the Centers for Disease Control and Prevention (CDC) and flexibly respond to changes in current conditions. § Regular meetings should be held, roles and responsibilities for various aspects of the local response determined, and evidence-based plans developed and rapidly implemented. § Consideration should be given to activating the Incident Command System within the facility to coordinate response to the crisis. § Responsibility should be assigned for tracking National and Local COVID-19 updates.
b) Coordination with local law enforcement and court officials to minimize crowding. § Explore alternatives to in-person court appearances. § Maximize use of existing policies for alternatives to incarceration. § Expedite implementation of compassionate release policies. § Explore strategies to reduce new intakes to the correctional facility. § Explore strategies for releasing inmates at low risk for violent crime –particularly those with risk factors for severe COVID-19.
c) Review Personnel Policies and Practices § Review the sick leave policies of each employer in the facility to determine which officials will have authority to send symptomatic staff home. § Review/revise/devise telework policies. § Review contingency plans for reduced staffing.
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§ Consider offering alternative duties to staff at higher risk of severe illness with COVID-19. § Remind staff to stay at home if they are sick § Institute employee screening of all employees (see Element #5) § Send staff home if they are identified with identified symptoms (fever, cough or shortness of
breath) and advise to follow CDC recommended steps for persons with COVID-19 symptoms § Utilize following criteria for symptomatic staff to return to work:
o no fever for at least 72 hours (i.e., 3 full days of no fever without use of medicine that reduces fever); AND o other symptoms improved (e.g., cough or shortness of breath have improved); AND o at least 7 days have passed since symptoms first appeared
§ Identify staff with COVID-19 Exposures (see definition of close contact in Element #12) o If a staff member has a confirmed COVID-19 infection, inform other staff about possible exposure to COVID-19 (maintaining confidentiality per American with Disabilities Act. o Decide if exposed staff will self-quarantine for 14-days or work wearing face mask.
§ NOTE: CDC recommends that employees, who are COVID-19 close contacts, self-monitor for symptoms and, if feasible—given staffing constraints—be under self-quarantine for 14 days. If due to staffing constraints, self-quarantine is determined not to be feasible, then asymptomatic exposed staff should come to work and wear a face mask (cloth or disposable) while working, with frequent hand hygiene.
d) Communication (Element #2):
§ Initiate and maintain ongoing communication with local public health authorities
§ Communicate with community hospital about procedures for transferring severely ill inmates. § Develop and implement ongoing communication plans for staff, incarcerated persons, and
families.
e) Implement General Prevention Measures (Element #3) § Promote good health habits among employees (Table 1)
o Review current policy regarding alcohol-based hand sanitizer and consider relaxing restrictions to allow more staff to carry individual-sized bottles for hand hygiene.
§ Conduct frequent environmental cleaning of high touch surfaces. Increase number of inmate workers assigned to this duty.
§ Institute social distancing measures to prevent spread of germs. Review list of possible measures listed in Element #3 and develop plans for your facility.
o Make decisions about movement § Minimize movement both within the facility and between facilities
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§ Consider restricting transfers of incarcerated persons to and from other jurisdictions unless necessary for medical evaluation, isolation/quarantine, clinical care, extenuating security concerns or to prevent overcrowding.
o Postpone non-urgent outside medical visits § Employees stay at home if sick. Review communications with employees about this. § If influenza vaccination is still in stock offer to unvaccinated staff (higher priority) and
incarcerated persons. § Implement infection prevention control guidance for staff doing screening (of visitors,
employee, new intakes) (Element #3) f) Make decisions about access for visitors, volunteers, contractors and lawyers (Element #4)
§ Communicate with potential visitors § Institute screening of visitors for symptoms and temperature (Attachment #1a) g) Institute Employee Screening (Element #5) (Attachment #1b) h) Institute New Intake Screening (Element #6) (Attachment #2) i) Appropriately manage and test symptomatic incarcerated persons (Element #7) § Suspend co-pays for incarcerated persons seeking medical evaluation for respiratory symptoms. j) Attempt to acquire needed personal protective equipment (PPE) and other supplies (Element #8) § Ensure that sufficient stocks of hygiene supplies, cleaning supplies, personal protective
equipment (PPE) , and medical supplies are available and there is a plan in place for re-stocking. § Review Table 3. COVID-19 Personal Protective Equipment Recommendations and post as
needed in facility. § Implement staff training on donning and doffing PPE. k) Assure that transport officers have received training on safe transport utilizing PPE (Element #9). § Identify staff who will provide transport l) Identify rooms to be used for isolation (Element #10) and quarantine (Element #12).
§ NOTE: CDC strongly recommends single rooms for persons isolated and quarantined. Cohorting of groups of persons should be done as a last resort.
§ Print out color isolation and quarantine signs for future use (Attachment #3 & Attachment #4). § Discuss how custody staff will be assigned to work in isolation/quarantine rooms.
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March 26, 2020
§ Appropriately train staff and incarcerated workers who work in laundry and food service. § Train staff and incarcerated workers on how to clean spaces where COVID-19 workers spent
time. m) Health services should review procedures for caring for the sick (Element #11)
§ Maintain communication with public health authorities to determine how COVID-19 testing will be performed and recommended criteria for testing
§ Explore options for expanding telehealth capabilities.
PHASE II. RESPONSE STEPS for MANAGING COVID-19
n) Implement alternative work arrangements, as deemed feasible. o) Suspend all transfers of incarcerated persons to and from other jurisdiction and facilities unless necessary for medical evaluation, medical isolation/quarantine, extenuating security concerns, or to prevent over-crowding. p) When possible, arrange for lawful alternatives to in-person court appearances. q) Consider quarantining all new intakes for 14 days before they enter the facility’s general population, if feasible. r) Incorporate screening for COVID-19 symptoms and a temperature check into release planning. Provide inmates who are under isolation or quarantine who are releasing with education about recommended follow-up. s) Coordinate with local public health authority regarding persons being isolated/quarantined with COVID-19. t) Communicate with community hospital regarding potential need to transfer severely ill inmates. u) Hygiene:
§ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. § Continue to emphasize practicing good hand hygiene and cough etiquette v) Environmental Cleaning: § Continue emphasis on cleaning and disinfection especially on frequently touched surfaces § Reference specific cleaning and disinfection procedures for areas where a COVID-19 case spent
time (Element #10)
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x) Implement medical isolation of confirmed or suspected COVID-19 cases (see Element #10). Implement telehealth modalities as much as possible.
y) Implement quarantine of close contacts of COVID-19 cases (see Element #12).
z) Implement system for tracking information about incarcerated persons and staff with suspected/confirmed COVID-19 and quarantined persons (Element #13).
2. Communication § The importance of regular communication with staff, the incarcerated population, and their families
cannot be over-emphasized. You cannot communicate too much. § Specific methods of communication for all groups should be established. Staff should be assigned to
be responsible for crafting and disseminating regular updates. § Post signage throughout the facility communicating the following:
o For all: symptoms of COVID-19 and hand hygiene instructions o For incarcerated/detained persons: report symptoms to staff o For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as
soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. o Ensure that signage is understandable for non-English speaking persons and those with low literacy § During COVID-19, group educational sessions should be avoided and instead, communicate with electronic and paper methods of communication. § Key communication messages for employees include: o Symptoms of COVID-19 and its health risks o Reminders about good health habits to protect themselves, emphasizing hand hygiene. o The importance of staying home if signs and symptoms of fever, cough, or shortness of breath or if known close contact with a person with COVID-19. o Review of sick leave policy o If staff develop fever, cough, or shortness of breath at work: immediately put on a face mask, inform supervisor, and leave facility, and follow CDC recommended steps for persons who are ill with COVID-19 symptoms. o Elements of the facility COVID-19 Response Plan to keep employees safe, including social distancing. § Key communication messages to incarcerated persons: o The importance of reporting fever and/or cough or shortness of breath (and reporting if another incarcerated person is coughing in order to protect themselves). Indicate how these reports should be made. o Reminders about good health habits to protect themselves, emphasizing hand hygiene. o Communicate that sharing drugs and drug preparation equipment can spread COVID-19. o Plans to support communication with family members (if visits are curtailed). o Plans to keep incarcerated persons safe, including social distancing.
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§ Key communication messages for families: o Information about visiting. If visiting is curtailed information about alternatives to in-person visits. o What the facility is doing to keep incarcerated persons safe.
§ Local public health authorities: Contact should be made and maintained with local public health authorities to get local guidance, especially with regard to managing and COVID-19 testing of persons with respiratory illness.
§ Local hospital: Communication should also be established with your local community hospital to discuss referral mechanisms for seriously ill incarcerated persons.
3. General Prevention Measures Throughout the duration of the COVID-19 pandemic the following general prevention measures should be implemented to interrupt viral infection transmission. These are listed in Table 1 below.
Table 1. General Prevention Measures
a. Promote good health habits among employees and incarcerated individuals: 1) Avoid close contact with persons who are sick. 2) Avoid touching your eyes, nose, or mouth. 3) Wash your hands often with soap and water for at least 20 seconds. 4) Cover your sneeze or cough with a tissue (or into a sleeve). Then throw the tissue in the trash. 5) Avoid non-essential physical contact. Avoid handshakes, “high-fives”
b. Conduct frequent environmental cleaning of “high touch” surfaces. c. Institute social distancing measures to prevent spread of germs, e.g., minimize self-
serve foods, minimize group activities. d. Employees stay at home if they are sick. e. Influenza (flu) vaccine is recommended for persons not previously vaccinated. f. Infection prevention and control guidance for persons doing screening (visitors, employees, new intakes)
a. Good Health Habits § Good health habits should be promoted in various ways, i.e., educational programs, posters,
campaigns, assessing adherence with hand hygiene, etc. § This CDC website has helpful educational posters: § Each facility should assure that adequate supplies and facilities are available for hand
washing for both incarcerated individuals and employees, including: soap, running water, hand drying machines or disposable paper towels. § Provide tissues and no-touch trash receptacles for disposal. § With approval of the Chief Executive Officer (CEO), health care workers should have access
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to alcohol-based hand rub. § Provisions should be made for employees and visitors and new intakes to wash their hands
when they enter the facility.
b. Environmental Cleaning § The frequency of routine cleaning of surfaces that are frequently touched should be
increased. These can include doorknobs, keys, handrails, telephones, computer keyboards, elevator buttons, cell bars, etc. § One strategy is to increase the number of incarcerated individuals who are assigned to this duty. § Hard Surfaces:
o If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
o For disinfection, diluted household bleach solutions, alcohol solutions with at least 70% alcohol, and most common EPA-registered household disinfectants should be effective. § Diluted, unexpired household bleach can be used if appropriate for the surface. Never mix household bleach with ammonia or any other cleanser. § Prepare bleach solution by mixing: 5 tablespoons (1/3 cup) bleach per gallon of water or 4 teaspoons of bleach per quart of water
§ Soft (porous) surfaces, i.e., carpeted floor, rugs, drapes o Remove visible contamination and clean with appropriate cleaners for these surfaces o If washable, launder in hottest water setting for the item and dry completely o Otherwise, use products with EPA-approved viral pathogens claims
§ Electronics cleaning and disinfection o For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present. o Follow the manufacturer’s instructions for all cleaning and disinfection products. o Consider use of wipeable covers for electronics. o If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens and other surfaces. Dry surfaces thoroughly to avoid pooling of liquids.
c. Social Distancing Measures
Strategies for social distancing are myriad and markedly dependent on local factors. Various administrative measures should be implemented to reduce contact between people and reduce chance of spreading viruses. It is recommended that an interdepartmental brainstorming meeting be held to discuss what would work in your facility. Examples of such measures include:
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§ Common areas o Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area).
§ Recreation o Choose recreation spaces where individuals can spread out o Stagger time in recreation spaces o Restrict recreation space usage to a single housing unit (where feasible), performing. o Disinfection between individual use of equipment and between groups o Eliminate close-contact sports, i.e., basketball, soccer o Emphasize individual activities, i.e., running, walking, jumping jacks o Stop the use of equipment that multiple people will touch
§ Meals o Stagger meals o Rearrange seating in dining hall to increase space between individuals, e.g., remove every other chair and use only one side of a table o Minimizing self-serve foods, e.g., eliminate salad bars o Provide meals inside housing units or cells
§ Group activities o Limit size of group activities o Increase space between individuals during group activities o Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out o Suspend group programs* *Note: With discontinuation of group activities, it is vitally important to creatively identify and provide alternative forms of activity to support the mental health of incarcerated individuals during the pandemic.
§ Education o Convert curriculum to self-study o Provide education through use of video modalities
§ Housing o Arrange bunks so that individuals sleep head to foot o Rearrange scheduled movements to minimize mixing of individuals from different housing units o Ensure thorough cleaning/disinfection of living space when inmates leave o If space allows, reassign bunks to provide more space between individuals (ideally 6 feet or more in all directions
§ Medical o Leverage telehealth modalities, e.g., tele-video and provider to provider consultation o If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms o Designate a room near intake area to evaluate new intakes with identified COVID-19 symptoms or exposure risk before they move to other parts of facility o Discontinue pill-lines and administering medication on units
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o Assure that inmates who come to sick call with respiratory symptoms are immediately placed in separate room with mask on and perform hand hygiene.
§ Minimize inmate movement o Minimize transferring of inmates between units o Stopping movement in and/or out o Suspending work release programs
§ Providing virtual visits
d. Sick/exposed employees remain home § COVID-19 could gain entrance to a facility via infected employees. Staff should be educated
to stay home if they have fever and respiratory symptoms. § If employees become sick at work, they should be advised to promptly report this to their
supervisor and go home. § Employees should be advised to consult their health care provider by telephone. § Employees who are sick should be advised to follow CDC guidance on What to do if you are
sick? § Determine employee policy regarding quarantine, i.e., exposed employees self-quarantine
for 14 days or come to work wearing a facemask and frequent hand hygiene. Exposed staff should promptly report symptoms if they occur.
e. Influenza vaccination § While influenza season is still ongoing flu vaccination remains an important measure to
prevent an illness that presents similarly to COVID-19. § If there is influenza vaccine still in stock, unvaccinated staff (highest priority) and
incarcerated persons should be offered the flu vaccine.
f. Infection prevention & control guidance for staff screening visitors, staff, and new intakes. The following is a protocol to safely check an individual’s temperature: o Perform hand hygiene o Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face) and a single pair of disposable gloves* o Check individual’s temperature § Non-contact or disposable thermometers are preferred over reusable oral thermometers. § If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. § If performing oral temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly disinfected in between each check. o Remove and discard PPE o Perform hand hygiene
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* Note: CDC recommends wearing a gown for this process. Given the current shortage of gowns in many facilities this is not routinely recommended in this plan.
4. Visitors / Volunteers / Contractors / Lawyers § Consideration should be given to begin limiting access to the facility by visitors and volunteers and
non-essential contractors. o Arrangements should be made to increase options for incarcerated persons to communicate with their families via telephone or tele-video.
§ If possible, legal visits should occur remotely. § Communicate with potential visitors instructing them to postpone visits if they have respiratory
illness. Post signage regarding visitor screening. § All visitors should be screened for symptoms and a temperature taken prior to entry utilizing the
form in Attachment 1a.
5. Employee Screening § In locations where it is identified that there is sustained COVID-19 community transmission,
employees should be screened upon arrival with a temperature, and asked questions about respiratory symptoms and if they have had contact with a known COVID-19 patient (Attachment 1b). § This form can be laminated for employees to review the questions for individuals to verbally respond to them. § A temperature should also be taken ideally with a no-touch infra-red thermometer. § Employee screenings do not require documentation unless the person responds “YES” to any question or has a temperature. § Screening can be performed by any staff person with training. § Employees who screen positive for symptoms should be sent home and advised to consult their healthcare provider. § Employees who have had close contact with a COVID-19 case should self-monitor for symptoms (i.e., fever, cough, or shortness of breath) and, if feasible given staffing constraints, be under selfquarantine for 14 days. If due to staffing constraints, self-quarantine is not feasible, asymptomatic exposed staff should come to work and wear a face mask (cloth or disposable) while working, with frequent hand hygiene.
6. New Intake Screening § New intakes should be screened per usual protocols. Consider conducting this screening outdoors or
in a covered area (weather and logistics permitting). § Temperature should be taken, ideally with an infra-red no-touch thermometer with staff wearing
PPE as described in Element #3f.
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§ Additional questions should be asked regarding symptoms and exposure to COVID-19 (Attachment 2).
§ New arrivals should be segregated from other incarcerated individuals until the screening process has been completed.
§ If new intakes are identified with symptoms then immediately place a face mask on the person, have the person perform hand hygiene, and place them in a separate room with a toilet while determining next steps. Staff entering the room shall wear personal protective equipment (PPE) in accordance with guidance in Element #8.
§ Identify incarcerated persons who were transferred with the symptomatic new intake for need for quarantine (see Element #12).
§ If new intakes report history of exposure to COVID-19 then they should be placed in quarantine (see Element #12).
7. Initial Management and Testing of Cases of Respiratory Illness § Source control (placing a mask on a potentially infectious person) is critically important. If
individuals are identified with symptoms, then immediately place a face mask on the patient and have them perform hand hygiene. § Place them in a separate room with a toilet and sink while determining next steps. If the facility has an airborne infection isolation room this could be used for this purpose. Staff in the same room shall wear personal protective equipment (PPE) as outlined in Element #8. § Decisions about how to manage and test incarcerated persons with mild respiratory illness should be made in collaboration with public health authorities. The vast majority of persons with respiratory illness will not have COVID-19, especially during seasonal flu season. It is unlikely that hospitals will have the capacity to evaluate incarcerated persons with mild respiratory illness. § The CDC current priorities for testing are listed at this link. § CDC recommendations for clinical specimens for COVID-19 include collecting and testing upper respiratory tract specimens (nasopharyngeal swab). New (3/24/20) CDC recommendation indicate that if nasopharyngeal swabs are not feasible that nasal swabs are an acceptable alternative. CDC also recommends testing lower respiratory tract specimens, if available. For patients who develop a productive cough, sputum should be collected and tested for COVID-19. Note: rapid blood tests for COVID-19 have become commercially available that test for IgG and IgM. These indicate that the results should not be the sole basis to diagnose or exclude infection. Therefore, at this time it is recommended that these tests not be used. § If feasible, during flu season it is recommended that rapid flu tests with nasopharyngeal swab be performed. It is important that nasopharyngeal swabs be performed correctly. § Nasopharyngeal swabbing should only be performed by staff with demonstrated competency. See instructional video at: https://www.youtube.com/watch?v=DVJNWefmHjE
§ Suspend co-pays for incarcerated persons seeking medical evaluation for respiratory symptoms.
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8. Personal Protective Equipment (PPE) and Other Supplies
PERSONAL PROTECTIVE EQUIPMENT § The CDC recommends the following PPE when a person comes into contact with a person with suspected or confirmed COVID-19. o N95 respirator or face mask
§ N95 respirators are preferred. When N95 respirators are in short supply they should be reserved first for use when a patient is undergoing an aerosol-generating procedure including testing for COVID-19 and second for confirmed COVID-19 patients.
§ N95 respirators should not be worn with facial hair that interferes with the respirator seal.
§ If N95 respirators are to be used, they must be used in the context of a fit-testing program. Fit
testing is specific to the brand/size of respirator to be used.
Table 2. Definitions of “Face Masks” and “Respirators”
Face Masks: Disposable FDA-approved masks, which come in various shapes and types (e.g., flat with nose bridge and ties, duck billed, flat and pleated, pre-molded with elastic bands). Respirators: N-95 or higher filtering, face-piece respirators that are certified by CDC/NIOSH.
o Gown
§ If gowns are in short supply they can be reserved for times when direct, close contact with a patient is being implemented.
o Gloves o Eye Protection (goggles or disposable face shield that fully covers the front and sides of the face).
§ This does not include personal eyeglasses. § If reusable eye protection is used, it should be cleaned and disinfected in accordance with
manufacturer’s instructions.
§ It is strongly emphasized that hand hygiene be performed before and after donning and doffing PPE.
§ Staff who are wearing PPE should be trained on its use. CDC instructions on donning and doffing PPE are available at: https://www.cdc.gov/hai/pdfs/ppe/ppe-sequence.pdf.
§ Inventory current supplies of PPE. § CDC (3/17/20) has published new recommendations on strategies to use in the absence of
available PPE. § Criteria for using various types of PPE based upon the situation is outlined in Table 3 (next page). § Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic
(see CDC guidance on optimizing PPE supplies). CDC now recommends that in the case of shortage of disposable face masks that re-usable cloth masks can be considered.
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OTHER SUPPLIES § Other supplies that should be obtained and inventory tracked include:
o Standard medical supplies and pharmaceuticals for daily clinic needs o Tissues o Liquid soap o Bar soap o Hand drying supplies o Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on
security restrictions) o Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes
COVID-19 o Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19
testing is indicated
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Table 3. COVID-19 Personal Protective Equipment Recommendations

Situation

N95 Face respirator mask

Eye protection

Gloves

Gown/ coveralls

STAFF

Staff performing temperature checks on: staff, visitors, or incarcerated/detained persons

X

X

X

1

Isolation: Staff providing medical care for suspected/confirmed COVID-19 cases

X 2

X

X

X

Isolation: Correctional staff entering isolation room

X 2

X

X

X

Staff present during aerosolizing procedure on suspected or confirmed COVID-19 case (including testing)

X

X

X

X

Staff handling laundry (from a COVID-19 case or case contact)

X

X

Staff handling used food service items (from a COVID-19 case or case contact)

X

X

Staff cleaning an area (where a COVID-19 case has spent time)

Additional PPE may be needed based on the disinfectant label.

X

X

Transport of suspected/confirmed COVID-19

X 2

During transport

Prior to & following transport (if close contact)

X 2

X

X

X

Quarantine: No direct contact with asymptomatic persons who are close contacts to COVID-19

X

X

X

Quarantine: Direct contact with asymptomatic persons (including medical care/temperature checks)

X

X

X

X

INCARCERATED/DETAINED PERSONS

Confirmed or suspected COVID-19 cases, or showing symptoms of COVID-19

X

Laundry worker (handling items from COVID-19 case or case contact)

X

X

Food service worker (handling items from COVID-19 case or case contact)

X

X

Worker performing cleaning (areas where COVID-19 case has spent time)

Additional PPE may be needed based on the disinfectant label.

X

X

Quarantine: Asymptomatic COVID-19 close contacts 3

Apply face masks for source control, as feasible, based on local supply, especially if cohorted

1 Note: CDC recommends wearing a gown for this process. Given the current shortage of gowns in many facilities this is not
routinely recommended in this plan.
2 A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks
(including cloth face masks) are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.
3 If a facility chooses to quarantine new intakes (without symptoms or known exposure to a COVID-19 case) before integrating
into the facility’s general population, face masks are not necessary.
Adapted from: CDC. Interim Guidance On Management of COVID-19 in Correctional and Detention Facilities (Table 1); 3/24/19. Available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#Min_Mod_Trans

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9. Transport If a decision is made to transport a patient with signs and symptoms of severe respiratory illness, to a health care facility the following guidance should be followed regarding transport. § Notify the receiving health care facility of the pending transport of a potentially infectious patient. § Patient wears a face mask and performs hand hygiene. § Correctional officer wears face mask (or N-95 respirator). Wear gloves, gown, and eye protection if
in close contact with inmate prior to transport. § Prior to transporting, all PPE (except for face mask / N-95 respirator) is removed and hand hygiene is
performed. This is to prevent contaminating the driving compartment. § Ventilation system should bring in as much outdoor air as possible. Set fan to high. § DO NOT place air on recirculation mode. § Weather permitting, drive with the windows down. § Following the transport, if close contact with the patient is anticipated, put on new set of PPE.
Perform hand hygiene after PPE is removed. § After transporting a patient, air out the vehicle for one hour before using it without a face mask or
respirator. § When cleaning the vehicle wear a disposable gown and gloves. A face shield or face mask and
goggles should be worn if splashes or sprays during cleaning are anticipated. § Clean and disinfect the vehicle after the transport utilizing instructions in Element #3b.
Table 4. Definitions of “Isolation” and “Quarantine” Isolation: Confining individuals who are sick either to single rooms or by cohorting them with other viral infection patients. Quarantine: Confining asymptomatic persons who are contacts to COVID-19 while they are in the incubation period (up to 14 days for COVID-19).
10. Isolation (Symptomatic Persons) § Isolation Defined: A critical infection control measure for COVID-19 is to promptly separate
incarcerated individuals who are sick with fever or respiratory symptoms away from other incarcerated individuals in the general population. Ideally isolation will occur in a private room with a bathroom attached. If not, incarcerated individuals will have to wear a face mask to go to the bathroom outside the room. § Cohorting: As a last resort option, persons with diagnosed COVID-19 can be cohorted together. Inmates with laboratory confirmed COVID-19 should be housed separately from those with undiagnosed respiratory illness. § The CDC guidelines describe the order of preference of rooms for isolating inmates. § Rooms where incarcerated individuals with respiratory illness are either housed alone or cohorted should be identified and designated “Respiratory Infection Isolation Room”. No
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special air handling is needed. The door to the isolation room should remain closed.
o Note: The PPE requirements for COVID-19 do not fall into any one of the usual categories for the CDC transmission-based precautions, i.e., droplet, airborne, or contact. For the purposes of this document we have labeled the precaution sign “Respiratory Infection Isolation Room” since the rooms may house persons with undiagnosed respiratory infection as well as diagnosed COVID-19.
§ Signage: A sign should be placed on the door of the room indicating that it is a Respiratory Infection Isolation Room that lists recommended personal protective equipment (PPE) (see Attachment 3) described in Element #8.
§ Face Masks: If available—to minimize the likelihood of disease transmission—persons who are isolated or cohorted should wear a face mask while isolated. Face masks should be replaced as needed. It is particularly important for those cohorted with undiagnosed respiratory illness to wear a mask so that persons with respiratory illnesses other than COVID-19 are protected.
§ Bunk beds: Depending on how ill the incarcerated individuals are, bunk beds may or may not be suitable.
§ Assignment of custody staff: If feasible, designated custody staff should be assigned to monitor isolated individuals in order to minimize exposures.
§ Provide individuals in isolation with tissues, and if permissible and available, a lined notouch trash receptacle.
§ Dedicated medical equipment, i.e., blood pressure cuffs should be left in room (ideally) or decontaminated in accordance with manufacturer’s instructions.
§ Masks outside of room: If individuals with respiratory illness must be taken out of the isolation room, they should wear a face mask and perform hand hygiene before leaving the room.
§ Aerosol generating procedures: If a patient who is in isolation must undergo a procedure that is likely to generate aerosols (e.g., suctioning, administering nebulized medications, testing for COVID-19) they should be placed in a separate room. An N-95 respirator (not a face mask), gloves, gown, and face protection should be used by staff.
§ Laundry: o Laundry from a COVID-19 cases can be washed with other individuals’ laundry. o Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and perform hand hygiene. o Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. o Launder items using the hottest appropriate water setting and dry items completely.
§ Food service items. Cases under medical isolation should throw disposable food service items in regular trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
§ Criteria for discontinuing isolation § For individuals who will NOT be tested to determine if they are still contagious: o The individual has been free from fever for at least 72 hours without the use of fever-reducing medications; AND o The individual’s other symptoms have improved (e.g., cough, shortness of breath); AND o At least 7 days have passed since the first symptoms appeared
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§ For individuals who had a confirmed positive COVID-19 test but never showed symptoms: o At least 7 days have passed since the date of the individual’s first positive COVID-19 test; AND o The individual has had no subsequent illness
§ Cleaning spaces where COVID-19 cases spent time o Close off areas used by infected individual. If possible, open outside doors and windows to increase air circulation in the area. o Wait as long as practical, up to 24 hours under the poorest air exchange conditions before beginning to clean and disinfect. o Ensure that persons performing cleaning wear recommended PPE for isolation (See Table 3). o Thoroughly clean and disinfect utilizing instructions in Element #3b with an emphasis on frequently touched surfaces.
11. Care for the Sick § There are no specific treatments for COVID-19 illness. Care is supportive. § Identify if ill persons have risk factors for COVID-19 complications. Those with increased risk
should be monitored more closely. § Treatment consists of assuring hydration and comfort measures. The recipe for oral
rehydration solution is in Table 4 below. § Acetaminophen is the preferred antipyretic for treating fever in most patients with COVID-19
considering its efficacy and safety profile. Ibuprophen is as an alternative, antipyretic choice; however, it can cause kidney damage and other adverse effects in some patients. Recent reports suggest that ibuprophen may worsen the course of COVID-19; however, this theoretical risk is still under investigation. § Patients should be assessed at least twice daily for signs and symptoms of shortness of breath or decompensation. § A low threshold should be used for making the decision to transport an inmate to the hospital if they develop shortness of breath. § Implement telemedicine or provider-to-provider consultations for management of COVID-19 patients.
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Table 5. Oral Rehydration Solution Recipe
1-gallon clean water 10-tablespoons of sugar 4-teaspons salt Directions: Stir up. Do not boil. Can add sugar -free drink mix to flavor. Use within 24 hours.
12. Quarantine (Asymptomatic Exposed Persons) § The purpose of quarantine is to assure that incarcerated individuals who are known to have
been exposed to the virus are kept separate from other incarcerated individuals to assess whether they develop viral infection symptoms. If cases of COVID-19 are identified, it may be appropriate to identify close contacts and quarantine them in a separate room or unit. § Close contact defined: In the context of COVID-19, an individual is considered a close contact if they have:
o Been within 6 feet of a COVID-19 case for a prolonged period of time OR o Had direct contact with infectious secretions of a COVID-19 case Considerations when assessing close contact include the duration of exposure and the clinical symptoms of the person with COVID-19 (i.e., coughing likely increases exposure risk as does exposure to a severely ill patient). § Identification of Quarantine Rooms: Facilities should make every effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts could result in transmission of COVID-19 to person who are uninfected. Cohorting should only be practiced if there are no other available options. o If an entire housing unit is under quarantine due to contact with a case from the same
housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. o Ideally do not cohort individuals who are at higher risk of severe illness from COVID-19. o CDC guidelines describe the order of preference for housing of inmates in quarantine. § Signage: The door to the Quarantine Room should remain closed. A sign should be placed on the door of the room indicating that it is a Quarantine Room which lists recommended personal protective equipment (PPE) (see Attachment 4). PPE includes face mask, eye protection, gloves, and a gown if close contact with a quarantined person is anticipated. § Face masks: (If there is a sufficient supply of face masks) To minimize the likelihood of disease transmission to persons cohorted in quarantine, quarantined persons should be required to wear a face mask. Face masks should be replaced as needed. § As feasible, the beds/cots of quarantined incarcerated individuals should be placed at least 6 feet apart.
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§ No Movement: Quarantined incarcerated individuals should be restricted from being transferred, having visits, or mixing with the general population.
§ PPE: A face mask, eye protection and gloves are recommended for staff who are in direct, close contact (within 6 feet) of asymptomatic quarantined incarcerated individuals.
§ Monitoring: CDC recommends that inmates in quarantine should be screened twice daily for symptoms including subjective fever, and a temperature. Symptomatic patients need to be isolated.
§ Laundry: o Laundry from quarantined persons can be washed with other individuals’ laundry. o Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. o Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. o Launder items using the hottest appropriate water setting and dry items completely. o Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
§ Meals should be provided to quarantined individuals in their quarantine spaces. Disposable food service items can be disposed of in regular trash. Individuals handling used food service items should wear gloves and dishes washed in hot water. Wash hands after removing gloves.
§ The duration of quarantine for COVID-19 is the 14-day incubation period. If a new case is identified in the quarantine unit then the 14-day quarantine period starts again.
13. Data Collection, Analysis & Reporting
Implement systems for tracking information about incarcerated persons and staff with suspected/confirmed COVID-19
§ Ill/Exposed Staff Persons: The following basic information should be tracked on a line list o Symptomatic Y/N o Date of symptom onset o Exposed? Y/N o Date of exposure o Current status (will change over time) § Exposed – Working § Exposed – Self-Quarantine § Person Under Investigation (PUI)- testing pending § PUI, test result pending § PUI, tested negative § Laboratory confirmed case
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o Date left work
o Date returned to work
§ Incarcerated Persons - Symptomatic: The following basic information should be tracked on a line-list: o Date of symptom onset o Reported symptoms (fever, cough, shortness of breath) o Date isolated o Influenza tested? Y/N o Influenza result o Date COVID-19 tested o Date COVID-19 test result o Result o Current status (will change over time) § Person Under Investigation (PUI)- testing pending § PUI, test result pending § PUI, tested negative § Laboratory confirmed case o Current housing: Isolation o Date isolation discontinued o Hospitalized Y/N o Hospitalization Date o Deceased Y/N
NOTE: Incarcerated persons who are identified with suspected/confirmed COVID-19 must be reported to public health authorities. You will be asking questions about cases found on this CDC COVID-19 reporting form.
§ Incarcerated Persons – Exposed o Date of exposure o Current Housing § Quarantined – alone § Quarantined – cohort o Date quarantine discontinued o Developed signs and symptoms of COVID-19? Y/N o Date Isolated
14. Summary, Evaluation and Continuous Quality Improvement (CQI)
Periodically and at the conclusion of the outbreak review the implementation of the COVID-19 Pandemic Response Plan and identify what has worked well and what has not worked well, total numbers of cases and contacts treated/evaluated. Engage the CQI committee in evaluating the facility pandemic response. Identify areas for improvement and report these recommendations to the leadership team.
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COVID-19 Pandemic Response Plan Implementation Worksheet

This MS Word® template worksheet is designed for facilities to operationalize the guidance in this COVID-19 Response Plan. It should be adapted to the unique needs of your facility.

Date Updated:

Completed by:

1. Administration/Coordination
Coordination of Response Identify members of the facility leadership team responsible for COVID-19 response planning and implementation: Will the facility utilize the Incident Command System? YES NO If not, how will COVID-19 response plans be developed and implemented?

Schedule regular meetings to review implementation of all elements listed in the Administration/Coordination section of the document.
Who is responsible for monitoring COVID-19 updates from CDC and State Health Department?
CDC Website: https://www.cdc.gov/coronavirus/2019-ncov/index.html State of _________ Website:_________________________________________________________
Coordinate response with local law enforcement and court officials.
§ Explore alternatives to in-person court appearances:
§ Maximize use of existing policies for alternatives to incarceration:
§ Expedite implementation of compassionate release policies:

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§ Explore strategies to reduce new intakes to the correctional facility: § Explore strategies for releasing inmates at low risk for violent crime –particularly those with
risk factors for severe COVID-19:
Personnel Policies and Practices. § Review the sick leave policies of each employer that operates in the facility. o Do policies actively encourage staff to stay home when sick? YES NO. If no, how will staff be encouraged to stay home if sick? o What officials will have the authority to send symptomatic staff home? § Identify staff whose duties would allow them to work from home and review/revise telework policies. § What/where are contingency plans for reduced staffing? § Will your facility offer revised duties to staff who are at higher risk of severe illness with COVID-19? YES NO § What mechanisms are in place to remind staff to stay at home if they are sick? § When will you institute employee screening of all employees (see Element #5) (even if you are not in a community with sustained community transmission)? § Review and incorporate into your plans the criteria for staff to return to work with COVID19 symptoms: § Review guidelines regarding COVID-19 Exposures/Quarantine. What is the policy in your facility regarding staff related to self-quarantine vs continue working with face mask?
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§ The plan suggests consider relaxing restrictions on allowing alcohol-based hand sanitizer. In this facility the following categories of staff can carry alcohol-based hand sanitizer:
Movement
How will movement be minimized within the facility?
How will movement be minimized between facilities?
Will non-urgent medical visits be postponed? YES NO
Will copays for incarcerated persons seeking medical evaluation for respiratory symptoms be waived? YES NO
2. Communication The mechanisms for regular updates (paper/electronic/telephonic) will be as follows: -----Staff: -----Incarcerated persons: -----Families of incarcerated persons: The following staff person(s) are responsible for assuring regular communication with stakeholders:
Review recommendations regarding signage in the facility. What signage will be posted in the
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facility and where will it be posted?
c. Local Public Health Agency: Contact person(s) for COVID-19: Phone: Email:
d. Communicate with your local health department and discuss guidance on management and COVID-19 testing of persons with respiratory illness. Document date of communication and the plans discussed: __/__/__
e. Local community referral hospital: ______________________________________ Contact person(s) for COVID-19: Phone: Email:
3. General Prevention Measures a. Good Health Habits: How will good health habits be promoted with your staff (e.g., posters,
leadership emphasizing hand hygiene, email messages to staff)?
1) Are there facilities for employees and visitors to wash hands when entering and leaving the facility? YES NO If no, what are plans to address this issue?
2) Are there facilities for incarcerated individuals to wash hands at intake? YES NO If no, what are plans to address this issue?
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3) Are soap dispensers or hand soap available in all employee and incarcerated person restrooms? YES NO What is the plan to assure that soap dispensers are refilled regularly?
4) What is the plan to assure incarcerated individuals have an adequate supply of bar soap?
5) Is signage for hand hygiene and cough etiquette at entry, in public and visible areas around?
6) Are tissues available? YES NO If so, where? 7) Are no-touch trash receptacles available? YES NO If so, where?
b. Environmental Cleaning: Review updated CDC recommendations regarding environmental cleaning – noting that common EPA-registered household disinfectants are considered effective? What disinfectants will you use in your facility?
(If deemed necessary) purchase EPA hospital-grade disinfectants from Schedule N: https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2. (Recommended products are both a surface cleaner and disinfectant with a 3-minute wet time or less.)
Identify “high-touch” surfaces in this facility (i.e., doorknobs, keys, telephones): The following plan will be implemented to increase frequency and the extent of cleaning and disinfection of high-touch surfaces in this facility:
c. Social Distancing Measures: What administrative measures is your facility going to institute to increase social distancing within your facility (Review across all departments in the facility)?
REVIEW additional suggested measures in the plan. It is recommended that an interdepartmental group review the list and brainstorm what would work In your facility. Then add those agreed upon to the list below. 1) Measure…
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The following new activities will be implemented for incarcerated persons while they are confined to a housing unit:
d. Employees Stay Home When Sick: Does communication with employees include message that they should stay home when sick or under quarantine? YES NO
Sick employees should be advised to follow CDC guidance on What to do if you are sick?
e. Flu Vaccine: Is there flu vaccine in stock? YES NO If yes, number of doses? If yes, what plans are there to continue offering vaccination to employees who have not been vaccinated? If yes, what plans are there to continue offering vaccination to incarcerated persons who have not been vaccinated?
f. Review and implement infection prevention and control guidance for staff screening visitors, staff, and new intakes. How will these be implemented?
4. Visitors / Volunteers / Contractors / Lawyers What changes in procedures / polices are being instituted in response to COVID-19 for: a. Visitors: b. Volunteers: c. Non-Essential Contractors: d. Lawyers:
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What signage/communication is being used to communicate with visitors? Is screening for visitors for symptoms and temperature being implemented? YES NO If yes, who will be conducting this screening?
5. Employee Screening Is sustained community-transmission occurring in your community? YES NO If yes, screening of employees upon arrival to work is recommended. Do you have an infrared no-touch thermometer for this purpose? YES NO If no, what are your plans for acquiring them? What are your plans for employee screening? The following system will be utilized for employees to report illness/exposures and to track this information:
6. New Intake Screening It is recommended that new arrivals be isolated from rest of population until screening is performed. New intakes should be screened with temperature and questionnaire. Where will screening occur?
Who will conduct screening?
What other screening logistics are being considered?
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Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 33 of 43 PageID #: 1256
COVID-19 Pandemic Response Plan
March 26, 2020
7. Initial Management and Testing of Cases of Respiratory Illness It is recommended that individuals with symptoms be immediately issued a face mask and be placed in a separate room with a toilet and sink. What separate room will be used for this purpose?
Do you have capacity in this facility to perform rapid flu tests? YES NO If yes, what are plans to assure competency in nasopharyngeal swabbing?
What are current recommendations from your local health department regarding COVID-19 testing?
Review CDC recommendation for clinical specimens? Do you have needed supplies for testing? YES NO If no, what are your plans to obtain them?

8. Personal Protective Equipment and Other Supplies
Date: __ /__/__ What is the current inventory of the following PPE: Face Masks: N-95 respirators: Gowns (disposable): Gowns (washable): Eye Protection- Goggles: Eye Protection—Disposable face shields:
What is your plan for securing and maintaining an adequate supply of PPE?

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Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 34 of 43 PageID #: 1257
COVID-19 Pandemic Response Plan
March 26, 2020
If respirators are available what activities will they be prioritized for?
What is your plan for fit-testing correctional officers?
What is your plan for fit-testing health care workers?
What are your plans for training regarding donning & doffing of PPE? Correctional Officers? Who? When? Health Care Workers? Review Table 3. COVID-19 Personal Protective Equipment Recommendations. What are your plans for posting this chart throughout the facility?
4. Review supply list in plan and determine current stock. What are your strategies for acquiring more supplies during this time of shortage?
o Standard medical supplies for daily clinic needs o Tissues o Liquid soap o Bar soap o Hand drying supplies o Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on
security restrictions) o Cleaning supplies, including EPA-registered disinfectants effective against the virus that
causes COVID-19 o Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if
COVID-19 testing is indicated 9. Transport
What categories of staff will be responsible for transport of ill persons?
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Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 35 of 43 PageID #: 1258
COVID-19 Pandemic Response Plan
March 26, 2020
What is your plan for training transport officers on procedures for transport?
10. Isolation / Cohorting (Symptomatic Persons)
Review CDC guidelines regarding the order of preference of rooms for isolating inmates. Are there any changes to your responses below based upon this? (On right-hand ribbon go to “Management” and scroll down to “Medical Isolation…”
What is your capacity for isolating ill inmates in single rooms with a toilet? Detail available rooms: What is your capacity for cohorting inmates together in a room with toilets/sinks? Detail available rooms or unit: What is your plan for designating and training officers assigned to isolation rooms on isolation room procedures? Is it feasible to designate specific custody staff to only monitor isolated individual to minimize exposures? YES NO If yes, how will staff be selected for this duty? Review recommendations for laundry and food service items? What are your plans for educating staff and incarcerated workers regarding these recommendations?
Review recommendations for cleaning spaces where COVID-19 cases spent time. What are your plans for training staff and incarcerated workers regarding these recommendations?
11. Care for the Sick
Do you have an adequate supply of Tylenol and other medications for supportive care of a respiratory illness? How will you identify if ill persons have risk factors for COVID-19 complications who are in need of closer monitoring? What plan will you have for monitoring ill inmates?
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Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 36 of 43 PageID #: 1259
COVID-19 Pandemic Response Plan
March 26, 2020
12. Quarantine
Review CDC guidelines regarding the order of preference of rooms for isolating inmates. Are there any changes to your responses below based upon this? (On right-hand ribbon go to “Management” and look for “Quadrating Close Contacts…” What rooms could be used for individual quarantine? What rooms could be used for charted (group quarantine)? How do you plan to monitor persons under quarantine? What is your plan for supplying face masks needed for an entire housing unit of incarcerated persons for a period of 14 days? What is you plan/ability to provide single rooms for exposed persons who have risks for complications, e.g., over age 60 or with medical risk factors?
Note that the BLUE Quarantine sign has been changed. Destroy these signs if you have printed them and print the RED Quarantine sign (which includes wearing gowns if close contact with quarantined persons).
12. Data Collection, Analysis, and Reporting
What is your plan for ongoing collection of data on staff and incarcerated persons with suspected/confirmed for COVID-19 or history of exposure?
Who is responsible for data collection, and analysis? This person should be prepared to updated numbers at each of the regularly schedule planning meetings.
14. Summary, Evaluation and Continuous Quality Improvement (CQI)
Who is responsible for ongoing evaluation of the pandemic response?
How will these evaluations be incorporated into local planning meetings?
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COVID-19 Pandemic Response Plan
March 26, 2020
Attachment 1a. COVID-19 Visitor Screening Form (revised 3/25/20)
§ It is suggested that this be form be laminated. Upon arrival to the facility that visitors are be asked to respond verbally to these questions and a temperature taken.
§ Screening can be conducted by any staff person. § If an answer to one of the questions is YES or a temperature exceeds 100.4 then hand the ask
the visitor to leave immediately. Advise them to communicate with their doctor by telephone.

YES NO

In the past 14 days, have you had contact with a person known to be infected with COVID-19 (corona virus)?

Today or in the past 24 hours, have you had any of the following symptoms?

YES NO YES NO YES NO

Fever, felt feverish, or had chills? Cough? Difficulty Breathing? Temperature

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Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 38 of 43 PageID #: 1261
COVID-19 Pandemic Response Plan
March 26, 2020
Attachment 1b. COVID-19 Employee Screening Form (revised 3/25/20)
§ It is suggested that this be form be laminated. Upon arrival to the facility the employees are be asked to respond verbally to these questions and a temperature taken.
§ Screening can be conducted by any staff person. § If an answer to one of the questions is YES or a temperature exceeds 100.4 then hand the
employee a mask to wear and send them home and recommend that they call their supervisor and consult their doctor. § A written copy of this form is only required for employees that answer YES to any of the screening questions or have a temperature exceeding 100.4.

YES NO

In the past 14 days, have you had contact with a person known to be infected with COVID-19 (corona virus)?

Today or in the past 24 hours, have you had any of the following symptoms?

YES NO YES NO YES NO

Fever, felt feverish, or had chills? Cough? Difficulty Breathing? Temperature

Screening Date: ____/____/_____

Employee Name (Last/First): _____________________________

Phone Number: ____________________________

Screening Employee Name: __________________ Signature:________________

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Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 39 of 43 PageID #: 1262
COVID-19 Pandemic Response Plan
March 26, 2020
Attachment 2. COVID-19 New Intake Screening Form (revised 3/25/20)

1. Assess the Risk Of Exposure Have you……
Yes In the past 14 days, have you had contact with a person known to be infected with No COVID-19 (corona virus) ?

2. Assess for Signs or Symptoms of Illness
• Persons with symptoms of illness or cough should be masked immediately and separated from others.
Do you have a……..
Yes Fever, felt feverish, or had chills? Record temperature: No
Yes Cough? No
Yes Difficulty Breathing? No

Date of Onset:

3. If YES SYMPTOM questions, place mask on person and have them perform hand hygiene and evaluate in accordance with instructions in Element 7.
4. If YES to ANY RISK questions, but NO, to all SIGNS or SYMPTOMS, place person in QUARANTINE.

Inmate Name: _________________________________ Number: _____________________ Employee Name: ____________________________________ Date: ___/___/___ Employee Signature: ____________________________________________

Page 39

Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 40 of 43 PageID #: 1263
COVID-19 Pandemic Response Plan
March 26, 2020
Attachment 3. Respiratory Infection Isolation Room Sign
On the following page is a Respiratory Infection Isolation Room sign for posting on the doors of isolation units.
Page 40

Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 41 of 43 PageID #: 1264
COVID-19 Pandemic Response Plan
March 26, 2020
Page 41

Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 42 of 43 PageID #: 1265
COVID-19 Pandemic Response Plan
March 26, 2020
Attachment 4. Quarantine Room Sign
On the following page is a Quarantine Room Sign for posting on the doors of housing units being used for quarantine. Note that this sign was modified in the March 25, 2020 version of this document to include use of gown when in close contact with a person in quarantine, i.e., medical personnel taking temperatures.
Page 42

Case 3:18-cv-01526 Document 173-1 Filed 04/01/20 Page 43 of 43 PageID #: 1266
COVID-19 Pandemic Response Plan
March 26, 2020
Page 43

Case 3:18-cv-01526 Document 173-2 Filed 04/01/20 Page 1 of 2 PageID #: 1267
SUPREME COURT OF APPEALS STATE OF WEST VIRGINIA ADMINISTRATIVE OFFICE

JOSEPH M. ARMSTRONG
ADMINISTRATIVE DIRECTOR
PHONE: 304-558-0145 FAX: 304-558-1212

BUILDING 1, ROOM E-100 1900 KANAWHA BOULEVARD, E. CHARLESTON, WV 25305-0145
WWW.COURTSWV.GOV

MEMORANDUM

TO:

CIRCUIT COURT JUDGES

MAGISTRATES

FROM:

LISA A. TACKETT DIRECTOR, COURT SERVICES

DATE:

MARCH 27, 2020

SUBJECT: COVID-19 AND PRE-TRIAL RELEASE

In light of the risk of a potential COVID-19 outbreak in jail facilities, the Department of Military Affairs and Public Safety (“DMAPS”) and various groups have reached out to the Supreme Court of Appeals of West Virginia to help develop appropriate guidance.
The Court’s March 22, 2020 Administrative Order states that “bond hearings” are considered emergency matters that can proceed during the period of Judicial Emergency. It is requested that Circuit Judges and Magistrates contact the Prosecuting Attorney in each county and request that the Prosecutors and the Assistant Prosecutors review the most recent list of pretrial detainees to identify any pre-trial individuals who do not constitute a public safety risk and may be appropriate candidates for PR or reduced bond. See Rule 46(g) of the West Virginia Rules of Criminal Procedure. Judicial officers are asked to request this action by the Prosecutors by the close of business on March 30, 2020.
Once those individuals are identified, the Prosecutor and defense attorney may consider submitting an agreed order for a PR or a reduced bond, and the judicial officer should deem such requests as emergency, time-sensitive matters for consideration under the March 22 Order. Judges and magistrates may also act sua sponte to set bond hearings, where deemed appropriate, to further address these concerns.
As always, judicial officers must fully consider the safety of the public and victims when setting bond or ordering bond revisions in light of the COVID-19 concerns. Factors that may be considered in making such determinations include special treatment of older individuals or individuals with an underlying health condition that make them especially susceptible to complications from the virus. When considering new incarcerations, judicial officers may
1

Case 3:18-cv-01526 Document 173-2 Filed 04/01/20 Page 2 of 2 PageID #: 1268 consider, while balancing the safety of the public and victims, whether PR or reduced bonds are appropriate to address concerns related to COVID-19.
Moving forward, MAPS has agreed to periodically provide additional information relating to current correctional facility populations. It is anticipated that such information will be identified by county. Judicial officers are requested to review the updated lists that will be distributed from DMAPS via the Administrative Office and continually assess the need to further address the unique concerns related to COVID-19 as outlined above.
2

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e201 oPf a2g5eP1agoef I2D5#: 1269

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BHARATKUMAR G. THAKKER,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-480 Hon. John E. Jones III

MEMORANDUM AND ORDER March 31, 2020
Pending before the Court is the Motion for Temporary Restraining Order and/or Preliminary Injunction filed by Petitioners-Plaintiffs Bharatkumar G. Thakker, Abedodun Adebomi Idowu, Courtney Stubbs, Rigoberto Gomez Hernandez, Rodolfo Augustin Juarez Juarez, Meiling Lin, Henry Pratt, Jean HErdy Christy Augustin, Mayowa Abayomi Oyediran, Agus Prajoga, Mansyur, Catalino Domingo Gomez Lopez and Dexter Anthony Hillocks (collectively “Petitioners”).1 (Doc. 7). The Motion has been briefed by the parties. (Docs. 12; 35; 46). The Court has received an amicus brief from a group of public health officials and human

1 Petitioners’ counsel advised that Mayansur and Agus Prajoga were released from immigration detention on March 27, 2020. (Doc. 33). Accordingly, their request for release from custody is moot.
1

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e202 oPf a2g5eP2agoef I2D5#: 1270
rights experts, (Doc. 36), as well as a factual update and supplemental authority filed by Petitioners. (Docs. 33 and 34). Thus, this matter is ripe for our review.
For the reasons that follow, the temporary restraining order shall be granted and the Respondents shall be directed to immediately release Petitioners today on their own recognizance.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are
being held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Thakker is 65 years old and suffers from high blood pressure and cholesterol and has kidney failure. Further, he is currently suffering from symptoms similar to those of COVID-19. (Doc. 12, Ex. 3). Idowu, 57, had type II diabetes as well as high blood pressure and cholesterol. He is also currently sick. (Doc. 12, Ex. 4). Stubbs is 52 years old and is immunocompromised due to a kidney transplant he received 6 years ago. He has a heart stent and also suffers from type II diabetes and blood clots. (Doc. 12, Ex. 5). Hernandez, 52, suffers from diabetes, dental problems and
2

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e203 oPf a2g5eP3agoef I2D5#: 1271
an ulcer. (Doc. 12, Ex. 7). Juarez, 21, suffers from diabetes and is currently sick with COVID-19 type symptoms, including trouble breathing. (Doc. 12, Ex. 8). Lin is 45 years old and suffers from chronic pain due to a forced sterilization, as well as chronic hepatitis B and liver disease. (Doc. 12, Ex. 9). Pratt, age 50, suffers from diabetes and high blood pressure. (Doc. 12, Ex. 10). Augustin, 34 years old, suffers from multiple conditions including diabetes, high blood pressure, nerve pain, limited mobility and pain from a prior bladder and intestine reconstruction, anemia, PTSD and depression. (Doc. 12, Ex. 11). Oyediran is a 40-year-old asthmatic suffering from high blood pressure and cholesterol. (Doc. 12, Ex. 12). Lopez, age 51, has contracted the flu four times while in ICE custody since November of 2018 and is concerned that he is especially susceptible to contracting COVID-19. (Doc. 12, Ex. 15). Finally, Hillocks, age 54, has been diagnosed with leukemia. He also suffers from diabetes, anemia, high blood pressure and cholesterol. (Doc. 12, Ex. 16).
Several Petitioners have reported symptoms similar to those of COVID-19. None have been quarantined, isolated, or treated. (Doc. 12 Exs. 3; 4; 8).
Named as Respondents are: Clair Doll, Warden of York County Prison; Angela Hoover, Warden of Clinton County Correctional Facility; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona Flores-Lund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting
3

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e204 oPf a2g5eP4agoef I2D5#: 1272
Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION In a matter of weeks, the novel coronavirus COVID-19 has rampaged across
the globe, altering the landscape of everyday American life in ways previously unimaginable. Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home. Indeed, we now live our lives by terms we had never heard of a month ago—we are “social distancing” and “flattening the curve” to combat a global pandemic2 that has, as of the date of this writing, infected 719,700 people worldwide and killed more than 33,673.3 Each day these statistics move exponentially higher. It is against this increasingly grim backdrop that we now consider the Petitioners’ claims for habeas relief.

2

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

3

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed March 31,

2020).

4

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e205 oPf a2g5eP5agoef I2D5#: 1273
A. Threshold Questions: Standing and the Propriety of a Habeas Petition
Respondents raise two threshold challenges to the Petitioners’ Motion. First, Respondents contend that Petitioners lack standing because they have not alleged an injury in fact. Next, Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Taking the latter challenge first, we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014); see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978). Accordingly, we find that Petitioners have appropriately invoked this court’s jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.
Respondents’ standing challenge can also be easily resolved. Respondents essentially contend that because the Petitioners themselves do not have COVID-19 and their likelihood of contracting the illness is speculative, Petitioners cannot establish that they would suffer a concrete, non-hypothetical injury absent a temporary restraining order. However, as the Supreme Court observed in Helling v. McKinney, 509 U.S. 25, 33 (1993), “it would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” The COVID-19 pandemic is moving rapidly and expansively throughout Pennsylvania. Vast regions of the
5

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e206 oPf a2g5eP6agoef I2D5#: 1274
Commonwealth are now under stay-at-home orders, and social distancing the norm to prevent the spread of this deadly virus. And yet, Respondents would have us offer no substantial relief to Petitioners until the pandemic erupts in our prisons. We reject this notion. Since “[a] remedy for unsafe conditions need not await a tragic event,” it is evident that the Petitioners have standing in this matter. Id.
B. Temporary Restraining Order i. Legal Standard
Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the
6

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e207 oPf a2g5eP7agoef I2D5#: 1275
movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
ii. Irreparable Harm To succeed on their Motion, Petitioners “must demonstrate. . .the probability of irreparable harm if relief is not granted.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal quotations omitted). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial”. . .the temporary restraining order. . .“must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it is likely to suffer “actual or imminent harm which cannot otherwise be compensated by money damages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank’s GMC, 847 F.2d at 103. The mere risk of injury is insufficient. The moving party must establish that the harm is imminent and
7

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e208 oPf a2g5eP8agoef I2D5#: 1276
probable. Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). Additionally, “a showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992).
The Petitioners’ claim is rooted in imminent, irreparable harm. Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. It is not unlikely that COVID-19 is already present in some county prisons—we have before us declarations that portions of the Facilities have been put under ineffective quarantines due to the presence of symptoms similar to COVID-19 among the inmate population.4 Indeed, we also have reports that a correctional officer at Pike has already tested positive for COVID-19. (Doc. 33 at 1).
Public health officials now acknowledge that there is little that can be done to stop the spread of COVID-19 absent effective quarantines and social distancing procedures. But Petitioners are unable to keep socially distant while detained by

4

We also have allegations that prison guards have shown symptoms while interacting with

inmates.

8

Case 3:C18a-scev-10:2105-2c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e209 oPf a2g5eP9agoef I2D5#: 1277

ICE and cannot keep the detention facilities sufficiently clean to combat the spread of the virus. Based upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners’ specific medical concerns, detailed below, we therefore find that Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.
a. Seriousness of the virus COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading easily and sustainably in the community.” 5 Experts believe that it can live on some surfaces for up to 72 hours after contact with an infected person.6 A simple sneeze or brush of the face without washing your hands is now known to easily spread the virus, which generally causes fever, cough, and shortness of breath. (How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL; Doc. 12 at 15). In most people, these symptoms are relatively mild. (Doc. 12 at 15). However, the effects of COVID-19 can be drastically more severe in older individuals or those with medical conditions. (Doc.10, Ex. 2). In some cases, COVID-19 can cause serious, potentially permanent, damage to lung tissue, and

5

How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed March 31,

2020).

6

New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH (March

17, 2020), https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-

surfaces.

9

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can require extensive use of a ventilator. (Id.). The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.). These long-term consequences and the likelihood of fatality increase in those of advanced age and those with other medical conditions, like the Petitioners here. (Id.). For those in high-risk categories, the fatality rate is thought to be approximately fifteen percent. (Id.).
There is currently no vaccine for COVID-19, nor are there known, clinically-tested therapeutic treatments. (Id.). As a result, public health officials have touted the importance of maintaining physical separation of at least six feet between individuals, now commonly known as “social distancing.” (Id.). Experts have also emphasized that proper hand hygiene with soap and water is vital to stop the spread. (Id.). Beyond these measures, health professionals can do little to combat this highly infectious disease. (Id.).
b. Prevalence of the virus The United States now records more confirmed cases of COVID-19 than any other country in the world.7 As of the date of this writing, there were in excess of

7

Nicole Chavez, Holly Yan, and Madeline Holcombe, US has more Known Cases of

Coronavirus than any Other Country, CNN,

https://www.cnn.com/2020/03/26/health/coronavirus-thousand-deaths-thursday/index.html (last

accessed March 31, 2020).

10

Case 3:C18a-scev-10:12502-c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e2011 Poaf 2g5e P11agoef I2D5#: 1279
164,458 cases of the virus in America, with 3,167 fatalities.8 This represented an increase of 2,651 cases in only twenty-four hours. (Id).
Indeed, Pennsylvania currently reports 4,087 confirmed cases of COVID-19, with 48 fatalities.9 Troublingly, that number represents nearly double the confirmed cases reported a mere four days ago—on March 27, 2020, Pennsylvania reported a total of 2,218 cases, with 22 deaths. Id. The three counties which house the Facilities are located in York County, Pike County, and Clinton County. They currently report a total of 93 cases: 54 in York County and 39 in Pike County.10 Clinton County has not yet reported any confirmed cases of COVID-19. Id. As of March 27, 2020, the Governor of Pennsylvania placed both York County and Pike County under a stay-at-home order in an attempt to slow the spread of the virus.11

8

Niko Kommenda, Pablo Gutiérrez, and Juweek Adolphe, Coronavirus Map of the US:

Latest Cases State by State, THE GUARDIAN, https://www.theguardian.com/world/ng-

interactive/2020/mar/27/coronavirus-map-of-the-us-latest-cases-state-by-state (last accessed

March 31, 2020).

9

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

10

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

11 Governor Wolf and Health Secretary Expand ‘Stay at Home’ Order to Nine More Counties to Mitigate Spread of COVID-19, Counties Now Total 19, WEBSITE OF THE GOVERNOR OF PENNSYLVANIA, https://www.governor.pa.gov/newsroom/governor-wolf-and-healthsecretary-expand-stay-at-home-order-to-nine-more-counties-to-mitigate-spread-of-covid-19counties-now-total-19/ (last accessed March 31, 2020).

11

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Average Pennsylvanians in these counties can no longer leave their homes for anything but essential trips to gather supplies, medications, or to perform work essential to our national infrastructure—COVID-19 spreads so easily and rapidly that public health officials have determined that social isolation is necessary to keep our hospital systems from becoming overwhelmed. Id. The same rationale applies, perhaps even more so, to immigration detention facilities housing highrisk populations.
c. Unique nature of detention facilities Various public health officials have warned that the nature of ICE detention facilities makes them uniquely vulnerable to the rapid spread of highly contagious diseases like COVID-19. COVID-19 is transmitted primarily through “close contact via respiratory droplets produced when an infected person coughs or sneezes.” (Doc. 12 at 18; Doc. 12, Ex. 1). Immigration detention facilities are particularly at risk for such close contact because they are considered “congregate settings, or places where people live or sleep in close proximity.” (Doc. 12, Ex. 1). Such conditions provide “ideal incubation conditions” for COVID-19. (Id.). Within the past few weeks, two medical experts for the Department of Homeland Security authored a letter to Congress warning of the unique dangers COVID-19 poses to ICE detention facilities. Specifically, they described the current ICE detention environment as a “tinderbox” in which:
12

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[a]s local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community. . .To be more explicit, a detention center with a rapid outbreak could result in multiple detainees — five, ten or more — being sent to the local community hospital where there may only be six or eight ventilators over a very short period. . .As [hospitals] fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc).12
The experts contrasted this scenario with a situation in which ICE detainees were
released from “high risk congregate settings,” allowing the “volume of patients sent
to community hospitals to level out,” which they believed would provide much more
favorable outcomes, both for the detainees and the surrounding communities. Id. “At
a minimum,” these health experts urged, the government “should consider releasing
all detainees in high risk medical groups such as older people and those with chronic
diseases.” Id. ICE detention facilities, they warned, are so poorly equipped to allow
safe social distancing practices and are unlikely to have the ability to provide
adequate medical care in the case of a COVID-19 outbreak. Id. The consequences,
they maintain, could be disastrous. Id.
12 Catherine E. Shoichet, Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention, CNN, https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/ (last accessed March 28, 2020).
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Indeed, we have before us declarations stating that such high-risk conditions are present in the detention facilities at issue in this case. Both Petitioners and lawyers familiar with the ICE facilities at issue here have attested to overcrowding that makes social distancing impossible at all three facilities. At the York facility, for example, inmates are housed in dormitory-style conditions, in which 60 people reside in each housing block. (Doc. 12, Ex. 18). That space is used for both eating and sleeping. (Id.). Petitioners report that not even the medical staff wear gloves when in contact with inmates. (Doc. 12, Ex. 11). Detainees must eat their meals four-to-a-table, with approximately three feet of space between individuals. (Id.).
At Clinton, inmate bunks are often less than two feet apart, and inmate declarations show that it is difficult to keep more than a two feet distance between inmates, let alone the recommended six feet. (Doc. 12, Ex. 10). The laundry facilities at Clinton are also reported to be chronically broken, preventing detainees from keeping their clothes and bedding clean. (Id.). Indeed, for a total of 72 men, Clinton provides only four sets of sinks and showers. (Id.). The Facility is also reported to have bugs mice, and rats, which add to the unsanitary conditions experienced by detainees. (Id.).
At Pike, detainees share eight-by-ten or twelve foot cells with two other men. (Doc. 12, Ex. 13). Those cells also contain a sink and a shower. (Id). Some men at Pike report being forced to share cells with other individuals currently exhibiting
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COVID-19 symptoms or report exhibiting symptoms themselves while housed with other inmates. (Doc. 12, Exs. 3; 4; 8). Inmates at Pike are also usually forced to remain within two feet of other individuals, even while in the common areas of the facility. (Doc. 12, Ex. 4). They are also required to buy their own soap, are not given hand sanitizer, and are forced to share cleaning supplies with an entire block of cells. (Doc. 12, Exs. 3; 13).
ICE guidance states that these types of risks are mitigated by quarantining detainees with symptoms and by housing those with a higher risk of exposure separately from the rest of the detainee population. (Doc. 12, Ex. 1). The Respondents further proffer that the Facilities are practicing “cohorting,” an “infection prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic.” (Doc. 35 at 12). This practice is meant to last for fourteen days, the duration of the virus’s incubation period. The Petitioner’s declarations, however, show that these practices are not being followed. At least two Petitioners aver that they are experiencing symptoms and have not been isolated from other individuals. (Doc. 12, Exs. 3; 4; 8). Furthermore, all Petitioners have a higher risk of exposure, and none have been moved to separate housing. Indeed, it does not even seem that ICE is providing detainees with proper information on how they can combat the virus on their own. (Doc. 12, Ex. 3). Troublingly, some facilities seem to have shut off detainee access
15

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to news outlets, thereby preventing the detention facility’s population from informing themselves on best practices to prevent transmission. (Doc. 12, Ex. 5).
d. Petitioners are at uniquely high risk for contracting COVID-19
Not only are the Facilities themselves uniquely suited to rapidly spread COVID-19, but also Petitioners themselves are members of high-risk groups that are likely to feel the effects of the virus more keenly than the average individual.13 Each of the Petitioners before us has an underlying medical condition that heightens their risk of serious COVID-19 effects, among them asthma, diabetes, heart conditions, hepatitis, and immunocompromising conditions such as leukemia and organ transplants.
e. The threat to high-risk individuals posed by COVID-19 constitutes irreparable injury
Various courts across the nation have found that COVID-19, coupled with the lack of hygiene and overcrowding present in detention facilities, will pose a greatly heightened risk to inmates. See Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir.

13

People at Risk for Serious Illness from COVID-19, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-

groups/high-risk-complications.html (“Older people and people of all ages with severe

underlying health conditions—like heart disease, lung disease and diabetes, for example—seem

to be at higher risk of developing serious COVID-19 illness”); Information for Healthcare

Professionals: COVID-19 and Underlying Conditions, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-

conditions.html (stating that “moderate to severe asthma,” “heart disease,” “obesity,” and

“diabetes” are conditions that trigger higher risk of severe illness from COVID-19).

16

Case 3:C18a-scev-10:12502-c6v-0D0o4c8u0m-JeEnJt 1D73o-c3umFeilnetd4074/0F1ile/2d003P/3a1g/e2017 Poaf 2g5e P17agoef I2D5#: 1285
Mar. 23, 2020) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”); United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large— created by large prison populations. Notably, the chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)).
Courts have also acknowledged the particular risks facing older inmates and those with underlying medical conditions. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial
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detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk the pandemic poses to his health. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelterin-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
Indeed, courts have even specifically held that COVID-19 constitutes an irreparable harm that supports the grant of a TRO. See Vasif “Vincent” Basank, et al v. Decker, 2020 WL 1481503 at *4-5 (S.D.N.Y. March 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO”); Castillo v.
18

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Barr, CV-20-00605-TJH (C.D. Cal. 2020) (granting a TRO to immigration detainees due to the COVID-19 pandemic); see also Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (finding irreparable harm “premised ... upon [the district court’s] finding that [Petitioner] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services. . .certainly constitutes irreparable harm.”).
The painful new reality is that we are constantly at risk of contracting a deadly virus and are experiencing previously unimagined safety measures to stop its spread. This virus spares no demographic or race and is ruthless in its assault. The precautions being adopted to stop it should apply equally, if not more so, to the most vulnerable among us. Petitioners have shown that adequate measures are not in place and cannot be taken to protect them from COVID-19 in the detention facilities, and that catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities. We therefore find that the likely irreparable injury to Petitioners, as high-risk individuals, satisfies the first element of our TRO analysis.
iii. Likelihood of Success on the Merits Petitioners argue that their continued incarceration in ICE detention facilities exposes them to serious risks associated with COVID-19 which violate their due
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process rights. (Doc. 12 at 27). We find that Petitioners are likely to succeed on the merits of their claim.14
To bring a Fifth Amendment due process claim, Petitioners must show that their conditions of confinement “amount[ed] to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). In other words, we must ascertain whether the conditions serve a legitimate purpose and whether the conditions are rationally related to that legitimate purpose. Hubbard 538 F.3d at 232.
Considering the Facility conditions previously discussed, we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would
14 The Respondents argue that Petitioners do not have a legitimate due process claim because they have no “liberty or property interest” in a purely “discretionary grant of humanitarian parole.” (Doc. 35 at 28). We disagree. “Unsanitary, unsafe, or otherwise inadequate conditions” are sufficient to state a Due Process Claim and we shall thus proceed with our analysis. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); Grohs v. Lanigan, No. 16-7083, 2019 WL 1500621, at *11 (D.N.J. Apr. 5, 2019) (“extreme heat combined with lack of potable water, as well as generally unsanitary conditions” are sufficient to state a conditions-of-confinement claim).
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constitute a punishment to Petitioners. Despite the Respondents’ protests to the contrary, we need not find that the Facilities had the “express intent” to punish Petitioners with the conditions alleged. (Doc. 35 at 37). Instead we ask whether the conditions are rationally related to a legitimate government objective. Hubbard 538 F.3d at 232. Here, they are not.
The Respondents maintain that “preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective.” (Doc. 35 at 38). They cite a great deal of authority supporting this point, and we do not disagree. (Id.). However, we cannot find that unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission, are rationally related to that legitimate government objective.
Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.
The global COVID-19 pandemic and the ensuing public health crisis now faced by American society have forced us all to find new ways of operating that prevent virus transmission to the greatest extent possible. We expect no less of ICE.
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We note that ICE has a plethora of means other than physical detention at their
disposal by which they may monitor civil detainees and ensure that they are present
at removal proceedings, including remote monitoring and routine check-ins.
Physical detention itself will place a burden on community healthcare systems and
will needlessly endanger Petitioners, prison employees, and the greater community.
We cannot see the rational basis of such a risk.15
We therefore find that Petitioners are likely to succeed on the merits of their
due process claim that their conditions of confinement expose them “to serious risks
associated with COVID-19.” (Doc. 12 at 35).
15 Moreover, not only have Petitioners established a likelihood of success on the merits on their Fifth Amendment claim, but, in fact, they have also demonstrated that their claim is likely to be successful under the more exacting Eighth Amendment standards as well. To succeed in proving that conditions of confinement violate the Eighth Amendment, a plaintiff must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively “sufficiently serious.” Furthermore, the Supreme Court has recognized authorities can be “deliberately indifferent to an inmate’s current health problems” where they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. Instead, if Petitioners can show that the conditions “pose an unreasonable risk of serious damage to their future health,” they may succeed on their claim. Helling, 509 U.S.at 35) (alteration omitted). The current measures undertaken by ICE, including “cohorting” detainees, are patently ineffective in preventing the spread of COVID-19. Indeed, we now have reports of a positive test amongst the employees at Pike County prison, thereby greatly increasing the likelihood that COVID-19 is present in the prison population.
22

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iv. Balancing of the Equities and Public Interest The equities at issue and public interest weigh heavily in Petitioners’ favor. First, and as described, Petitioners face irreparable harm to both their constitutional rights and their health. Second, we find that the potential harm to the Respondents is limited. While we understand and agree that preventing Petitioners from absconding and ensuring their presence at immigration proceedings is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic. Finally, the public interest favors Petitioners’ release. As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and
23

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the release of these fragile Petitioners from confinement is one step further in a positive direction.
III. CONCLUSION In times such as these, we must acknowledge that the status quo of a mere
few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.
Respondents’ Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result. Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners’ plight. And so we will act.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility shall be ordered to immediately
24

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release the Petitioners today on their own recognizance without fail. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 7), is GRANTED.
2. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance.
3. This TRO will expire on April 13, 2020 at 5:00 p.m. 4. No later than noon on April 7, 2020, the Respondents shall SHOW
CAUSE why the TRO should not be converted into a preliminary injunction. 5. The Petitioners may file a response before the opening of business on April 10, 2020.
s/ John E. Jones III John E. Jones III United States District Judge
25

 
 United States District Court Southern District of West Virginia (Huntington) CIVIL DOCKET FOR CASE #: 3:18-cv-01526

Baxley et al v. Jividen et al Assigned to: Judge Robert C. Chambers Cause: 42:1983 Prisoner Civil Rights

Date Filed: 12/18/2018 Jury Demand: Defendant Nature of Suit: 555 Prisoner (Prison Condition) Jurisdiction: Federal Question

Plaintiff John Baxley, Jr.

represented by Jennifer S. Wagner MOUNTAIN STATE JUSTICE Suite 101 1029 University Avenue Morgantown, WV 26505 304/326-0188 Fax: 304/326-0189 Email: jennifer@msjlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lydia C. Milnes MOUNTAIN STATE JUSTICE Suite 101 1029 University Avenue Morgantown, WV 26505 304/326-0188 Fax: 304/326-0189 Email: lydia@msjlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Kincaid MOUNTAIN STATE JUSTICE 1217 Quarrier Street Charleston, WV 25301 304-344-3144 Fax: 304-344-3145 Email: rkincaid@msjlaw.org ATTORNEY TO BE NOTICED

Plaintiff

Amber Arnett TERMINATED: 10/29/2020
Plaintiff Earl Edmondson
Plaintiff Joshua Hall

represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Kincaid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Kincaid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Kincaid (See above for address)

Plaintiff Donna Wells-Wright
Plaintiff Robert Watson TERMINATED: 07/20/2020
Plaintiff Heather Reed and

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Kincaid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Kincaid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Danny Spiker, Jr. on their own behalf and on behalf of all others similarly situated

Rachel Kincaid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Kincaid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Consol Plaintiff Eric L. Jones TERMINATED: 10/29/2020
Consol Plaintiff Samuel Stout TERMINATED: 05/22/2020

represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Kincaid (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff Samuel W. Stout TERMINATED: 12/19/2019
V. Defendant Betsy Jividen in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation

Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Kincaid (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer S. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lydia C. Milnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana J. Marino FLAHERTY SENSABAUGH & BONASSO P. O. Box 3843 Charleston, WV 25338-3843 304-558-8989 Email: Briana.J.Marino@wvago.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Stebbins LEWIS GLASSER P. O. Box 1746 Charleston, WV 25326-1746 304-345-2000 Email: jstebbins@lewisglasser.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard L. Gottlieb LEWIS GLASSER

Defendant
West Virginia Division of Corrections and Rehabilitation and TERMINATED: 12/21/2020

P. O. Box 1746 Charleston, WV 25326-1746 304/345-2000 Fax: 304/343-7999 Email: rgottlieb@lewisglasser.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Valerie Harris Raupp LEWIS GLASSER P. O. Box 1746 Charleston, WV 25326-1746 304-345-2000 Email: vraupp@lewisglasser.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William E. Murray ANSPACH MEEKS ELLENBERGER 717 Brawley Walkway Charleston, WV 25301 304/205-8063 Fax: 304/205-8062 Email: wmurray@anspachlaw.com TERMINATED: 05/02/2019 LEAD ATTORNEY
Webster J. Arceneaux , III LEWIS GLASSER P. O. Box 1746 Charleston, WV 25326-1746 304/345-2000 Fax: 304/343-7999 Email: wjarceneaux@lewisglasser.com ATTORNEY TO BE NOTICED
represented by Briana J. Marino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Stebbins (See above for address)

Defendant Carl Aldridge Superintendent of the Western Regional Jail and Correctional Facility TERMINATED: 05/22/2020
Defendant Shelbey Searls in his official capacity as the

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard L. Gottlieb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Valerie Harris Raupp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Webster J. Arceneaux , III (See above for address) ATTORNEY TO BE NOTICED
represented by Briana J. Marino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard L. Gottlieb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Valerie Harris Raupp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Webster J. Arceneaux , III (See above for address) ATTORNEY TO BE NOTICED
represented by Briana J. Marino WV ATTORNEY GENERAL'S

Superintendent of Western Regional Jail and Correctional Facility TERMINATED: 04/08/2020
Defendant Western Regional Jail TERMINATED: 04/25/2019 Defendant Joseph Wood in his official capacity as the Superintendent of Western Regional Jail and Correctional Facility TERMINATED: 12/19/2019

OFFICE Building 1, Suite W400 Capitol Complex Charleston, WV 25305 304-558-2930 Email: Briana.J.Marino@wvago.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard L. Gottlieb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Valerie Harris Raupp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Webster J. Arceneaux , III (See above for address) ATTORNEY TO BE NOTICED
represented by Briana J. Marino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Briana J. Marino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William E. Murray (See above for address) TERMINATED: 05/02/2019 LEAD ATTORNEY

V. Consol Defendant Western Regional Jail Authority TERMINATED: 04/25/2019
Consol Defendant Captain Aldrage TERMINATED: 04/25/2019
Consol Defendant Any CO that has worked in A5 section TERMINATED: 04/25/2019
Consol Defendant Captain Savilla TERMINATED: 04/25/2019
Third Party Plaintiff Carl Aldridge Superintendent of the Western Regional Jail and Correctional Facility TERMINATED: 02/12/2020

represented by William E. Murray (See above for address) TERMINATED: 05/02/2019 LEAD ATTORNEY
represented by William E. Murray (See above for address) TERMINATED: 05/02/2019 LEAD ATTORNEY
represented by William E. Murray (See above for address) TERMINATED: 05/02/2019 LEAD ATTORNEY
represented by Briana J. Marino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard L. Gottlieb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Valerie Harris Raupp (See above for address)

Third Party Plaintiff Betsy Jividen in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation TERMINATED: 02/12/2020
Third Party Plaintiff Shelbey Searls in his official capacity as the Superintendent of Western Regional Jail and Correctional Facility TERMINATED: 04/08/2020

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Webster J. Arceneaux , III (See above for address) ATTORNEY TO BE NOTICED
represented by Briana J. Marino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Stebbins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard L. Gottlieb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Valerie Harris Raupp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Webster J. Arceneaux , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William E. Murray (See above for address) TERMINATED: 05/02/2019 LEAD ATTORNEY
represented by Briana J. Marino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Stebbins

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard L. Gottlieb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Valerie Harris Raupp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Webster J. Arceneaux , III (See above for address) ATTORNEY TO BE NOTICED

V. Third Party Defendant Primecare Medical of WV, Inc. TERMINATED: 02/12/2020 Third Party Defendant Wexford Health Sources Inc. TERMINATED: 02/12/2020 Intervenor Plaintiff American Civil Liberties Union of West Virginia
Movant PrimeCare Medical, Inc.

represented by Loree Beth Stark MOUNTAIN STATE JUSTICE, INC. 1217 Quarrier Street Charleston, WV 25301 304/344-3144 Fax: 304/344-3145 Email: lstark@acluwv.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Liles O'Hare OFFUTT NORD ASHWORTH P. O. Box 2868

Mediator G. Nicholas Casey, Jr.

Huntington, WV 25728-2868 304-529-2868 Fax: 304-529-2999 Email: alohare@onalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by G. Nicholas Casey , Jr. LEWIS GLASSER P. O. Box 1746 Charleston, WV 25326-1746 304/345-2000 Fax: 304/343-7999 Email: gncasey@lgcr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/18/2018 12/18/2018
12/18/2018 12/20/2018
01/02/2019

# Docket Text
1 COMPLAINT. (jsa)
2 VACATED IN PART PURSUANT TO 11 ORDER: STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED JANUARY 4, 2016. Discovery referred to Magistrate Judge Eifert. (cc: attys; any unrepresented party) (jsa) (Modified on 2/28/2019 to note that discovery is referred to Magistrate Judge Eifert pursuant to the #10 notice of appearance) (mkw).
CASE assigned to Judge Robert C. Chambers. (klc) (Entered: 12/19/2018)
3 MEMORANDUM OPINION AND ORDER directing Plaintiff to pay the filing fee of $400 or submit to the Court a completed and signed Application to Proceed Without Prepayment of Fees and Costs; further directing Plaintiff to amend his complaint as specified herein within thirty (30) days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 12/20/2018. (cc: Plaintiff with an Application to Proceed Without Prepayment of Fees and Costs and instructions) (jsa)
4 MAIL RETURNED AS UNDELIVERABLE. Mail sent to John Baxley at WESTERN REGIONAL JAIL, One O'Hanlon Place, Barboursville, WV 25504. Mail resent to John Baxley at STEVENS

01/04/2019 01/16/2019 01/16/2019 01/16/2019 02/05/2019
02/19/2019 02/19/2019 03/11/2019
04/22/2019

CORRECTIONAL CENTER, 795 Virginia Avenue, Welch, WV 24801. (hkl)
5 MAIL RETURNED AS UNDELIVERABLE. Mail sent to John Baxley at WESTERN REGIONAL JAIL, One O'Hanlon Place, Barboursville, WV 25504. Mail resent to John Baxley at STEVENS CORRECTIONAL CENTER, 795 Virginia Avenue, Welch, WV 24801. (hkl)
6 APPLICATION by John Baxley, Jr to Proceed without Prepayment of Fees or Costs. (Attachment: # 1 Envelope) Motion referred to Magistrate Judge Cheryl A. Eifert. (hkl)
7 AUTHORIZATION TO RELEASE INSTITUTIONAL ACCOUNT INFORMATION by John Baxley, Jr. (Attachment: # 1 Envelope) (hkl)
8 AMENDED COMPLAINT by John Baxley, Jr. against Western Regional Jail. (hkl)
9 ORDER directing Plaintiff to pay the filing fee of $400 or submit a completed Application to Proceed Without Prepayment of Fees and Costs; notifying Plaintiff that failure to pay the fee or submit an amended Application, as instructed, within 30 days of the date of this Order may result in a recommendation that the complaint be dismissed. Signed by Magistrate Judge Cheryl A. Eifert on 2/5/2019. (cc: Plaintiff with a copy of an Application to Proceed Without Prepayment of Fees and Costs) (mkw)
10 NOTICE OF APPEARANCE by Lydia C. Milnes on behalf of John Baxley, Jr. (Milnes, Lydia)
CASE no longer referred to Magistrate Judge Cheryl A. Eifert for Findings of Fact and Recommendations for disposition pursuant to the 10 Notice of Appearance. (mkw) (Entered: 02/28/2019)
11 ORDER vacating the 2 Standing Order entered on 12/18/2018 referring this case to Magistrate Judge Cheryl A. Eifert to submit proposed findings of facts and recommendation, pursuant to counsel's entering a notice of appearance in this case; directing the Clerk to refer this case to Magistrate Judge Eifert for discovery purposes only. Signed by Judge Robert C. Chambers on 3/11/2019. (cc: counsel of record; any unrepresented party) (jsa)
12 STIPULATION re: 1 Complaint by John Baxley, Jr (Attachment: # 1 Amended Complaint)(Wagner, Jennifer)

04/25/2019
04/25/2019 04/25/2019 04/25/2019 04/25/2019 04/25/2019 04/25/2019 04/29/2019

13 ORDER directing that civil actions 3:18-cv-1526, 3:18-cv-1436, 3:18cv-1533 be consolidated; Civil Action 3:18-cv-1526 shall be designated as the lead case, and the matter shall proceed under that styling; further directing that the First Amended Complaint for Injunctive and Declaratory Relief attached to the 12 Stipulation be filed and all defendants, other than those set forth in the First Amended Complaint, be dismissed; the defendants named in the First Amended Complaint will have sixty days from today's date to file a responsive pleading. Signed by Judge Robert C. Chambers on 4/25/2019. (cc: attys; any unrepresented parties) (mkw)
THIS CASE HAS BEEN CONSOLIDATED WITH CASE NUMBERS 3:18-cv-1436 and 3:18-cv-1533 AS OF 04/25/2019. ALL FURTHER ENTRIES SHALL BE DOCKETED IN 3:18-cv-1526. (mkw)
14 MOTION by Captain Aldrage, Captain Savilla, Western Regional Jail Authority to Dismiss Complaint With Prejudice. (originally filed in 3:18-cv-1436 on 3/1/2019) (mkw)
15 MEMORANDUM OF LAW by Captain Aldrage, Captain Savilla, Western Regional Jail Authority in support of 14 MOTION by Captain Aldrage, Captain Savilla, Western Regional Jail Authority to Dismiss Complaint With Prejudice. (originally filed in 3:18-cv-1436 on 3/1/2019) (mkw)
16 STIPULATION by Captain Aldrage, Captain Savilla, Samuel W. Stout, Western Regional Jail Authority to Extend Time for Plaintiff's Response to 14 MOTION by Captain Aldrage, Captain Savilla, Western Regional Jail Authority to Dismiss Complaint to 30 days. (originally filed in 3:18-cv-1436 on 3/15/2019) (mkw)
17 STIPULATION by Captain Aldrage, Captain Savilla, Samuel W. Stout, Western Regional Jail Authority to Extend Time for Plaintiff's Response to 14 MOTION by Captain Aldrage, Captain Savilla, Western Regional Jail Authority to Dismiss Complaint an additional 7 days. (originally filed in 3:18-cv-1436 on 4/15/2019) (mkw)
18 FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF by John Baxley, Jr., Samuel W. Stout, Eric L. Jones against Betsy Jividen, Joseph Wood. (mkw)
19 ORDER denying as moot Defendants' 14 MOTION to Dismiss the Complaint. Signed by Judge Robert C. Chambers on 4/29/2019. (cc: counsel of record; any unrepresented parties) (hkl)

04/29/2019 05/02/2019 06/14/2019 06/20/2019 07/12/2019
07/24/2019 07/24/2019 07/24/2019 07/26/2019 08/02/2019

20 MOTION by William E. Murray to Withdraw as Attorney on behalf of Aldrage, Any CO that has worked in A5 section, Savilla, Western Regional Jail Authority (Murray, William)
21 ORDER granting Attorney William Murray's 20 MOTION to Withdraw as Counsel; directing that he be removed from receiving filing notifications. Signed by Judge Robert C. Chambers on 5/2/2019. (cc: counsel of record; any unrepresented parties) (jsa)
22 MAIL RETURNED AS UNDELIVERABLE. Mail sent to John Baxley at STEVENS CORRECTIONAL CENTER, 795 Virginia Ave, Welch, WV 24801. Mail resent to John Baxley at WESTERN REGIONAL JAIL, One O'Hanlon Place, Barboursville, WV 25504. (hkl)
23 APPLICATION by John Baxley, Jr. to Proceed without Prepayment of Fees and Costs. (mkw)
24 ORDER directing Plaintiff Baxley to pay the $350.00 filing fee or show cause within 30 days of the filing of this Order, why this case should not be dismissed as to this Plaintiff; directing Plaintiffs Stout and Jones to each pay a $350.00 filing fee or show cause within 30 days of the filing of this Order, why this case should not be dismissed as to each Plaintiff. Signed by Judge Robert C. Chambers on 7/12/2019. (cc: counsel of record; any unrepresented parties) (hkl)
25 Filing Fee: $350.00, Receipt Number HUNT004251 as to John Baxley, Jr. pursuant to the 24 Order. (hkl) (Modified on 7/26/2019 to replace image) (mkw).
26 Filing Fee: $350.00, Receipt Number HUNT004252 as to Eric L. Jones pursuant to the 24 Order. (hkl) (Modified on 7/26/2019 to replace image) (mkw).
27 Filing Fee: $350.00, Receipt Number HUNT004253 as to Samuel W. Stout pursuant to the 24 Order. (hkl) (Modified on 7/26/2019 to replace image) (mkw).
NOTICE OF DOCKET CORRECTION re: 25 , 26 , 27 Filing Fees. Error: Incorrect images attached. Correction: Replaced incorrect images with correct images. (mkw)
28 ORDER directing the Clerk to enter a default, pursuant to Fed. R. Civ. P. 55(a), against Defendants Betsy Jividen and Joseph Wood; further directing counsel for Plaintiffs to file the appropriate motions and affidavits, or to arrange for the necessary evidentiary hearing, to facilitate the entry of default judgment, pursuant to Fed. R. Civ. P. 55(b), within twenty days of the entry of this Order. Signed by Judge

08/02/2019
08/09/2019 08/13/2019 08/13/2019 08/19/2019 08/21/2019
09/09/2019 09/17/2019

Robert C. Chambers on 8/2/2019. (cc: counsel of record; any unrepresented parties) (jsa)
29 SET ASIDE PURSUANT TO THE 31 ORDER. ENTRY OF DEFAULT BY CLERK as to Betsy Jividen, Joseph Wood. (cc: counsel of record; counsel for defendants via certified mail) (Attachment: # 1 certified mail receipt) (jsa) (Modified on 8/13/2019 to note that the entry of default by clerk has been set aside pursuant to the #31 order) (mkw).
30 MOTION by Betsy Jividen, Joseph Wood to Set Aside Default and MOTION for Leave to File An Answer (Marino, Briana). (Modified on 8/12/2019 to add motion for leave event and to correct party filers)(ts).
31 ORDER granting Defendants' 30 MOTION to Set Aside 29 Default and Motion for Leave to File An Answer; Defendants may have until 8/20/2019 to respond to Plaintiffs' 18 First Amended Complaint. Signed by Judge Robert C. Chambers on 8/13/2019. (cc: counsel of record; any unrepresented parties) (jsa)
32 RETURN RECEIPT CARD received re: 29 Entry of Default by Clerk. Signed on 8/5/2019 by an agent of the same on behalf of Briana T. Marino. (jsa)
33 ANSWER TO 18 Amended Complaint With Jury Demand by Betsy Jividen, Joseph Wood.(Marino, Briana) (Modified on 8/20/2019 to remove terminated filer and to add jury demand) (ts).
34 ORDER AND NOTICE: Rule 12(b) Motions 9/10/2019. Rule 26(f) Meeting 9/16/2019. Last day to file report of Rule 26(f) Meeting 9/23/2019. Scheduling/status Conference at 11:30 AM on 10/7/2019 in Huntington. Entry of Scheduling Order 10/15/2019. Last Day to make Rule 26(a)(1) disclosures 10/21/2019 Signed by Judge Robert C. Chambers on 8/21/2019. (cc: counsel of record; any unrepresented parties) (hkl)
35 JOINT STIPULATION EXTENDING Deadlines re: 34 Order and Notice by Betsy Jividen, Joseph Wood, John Baxley Jr., Eric L. Jones, Samuel W. Stout (Marino, Briana) (Modified on 9/11/2019 to add link to #34 order and to add party filers)(ts).
36 ORDER denying as moot Plaintiff John Baxley's 23 APPLICATION to Proceed Without Prepayment of Fees or Costs. Signed by Judge Robert C. Chambers on 9/17/2019. (cc: counsel of record; any unrepresented parties) (jsa)

09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/27/2019 10/07/2019 10/08/2019

37 MOTION by Betsy Jividen, Joseph Wood to Dismiss 18 First Amended Class Action Complaint, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Baxley (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marino, Briana) (Modified on 9/24/2019 to add event motion for summary judgment and to correct party filers) (ts).
38 MEMORANDUM OF LAW by Betsy Jividen, Joseph Wood in support of 37 MOTION by Betsy Jividen, Joseph Wood to Dismiss 18 First Amended Class Action Complaint, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Baxley (Marino, Briana) (Modified on 9/24/2019 to correct party filers) (ts).
39 MOTION by Betsy Jividen, Joseph Wood to Dismiss 18 First Amended Class Action, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Eric Jones. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marino, Briana) (Modified on 9/24/2019 to convert event for discovery to event for summary judgment) (ts).
40 MEMORANDUM OF LAW by Betsy Jividen, Joseph Wood in support of 39 MOTION by Betsy Jividen, Joseph Wood to Dismiss 18 First Amended Class Action, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Eric Jones (Marino, Briana) (Modified on 9/24/19 to correct party filers) (ts)
41 MOTION by Betsy Jividen, Joseph Wood to Dismiss 18 First Amended Class Action, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Stout (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marino, Briana) (Modified on 9/24/2019 to add event motion for summary judgment and to correct party filers) (ts).
42 MEMORANDUM OF LAW by Betsy Jividen, Joseph Wood in support of 41 MOTION by Betsy Jividen, Joseph Wood to Dismiss 18 First Amended Class Action, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Stout (Marino, Briana) (Modified on 9/24/2019 to correct party filers) (ts).
43 RULE 26(f) REPORT OF PLANNING MEETING by John Baxley, Jr., Eric L. Jones, Samuel W. Stout, Betsy Jividen, Joseph Wood (Milnes, Lydia) (Modified on 9/27/2019 to add party filers) (ts).
44 SCHEDULING CONFERENCE held by Judge Robert C. Chambers on 10/7/2019; Court Reporter: Kathy Swinhart. (trj)
45 RESPONSE by John Baxley, Jr in opposition to 37 MOTION by Betsy Jividen, Joseph Wood to Dismiss 18 First Amended Class Action Complaint, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Baxley and 41 MOTION by Betsy Jividen, Joseph

10/09/2019 10/09/2019 10/10/2019 10/10/2019
10/21/2019 10/21/2019 11/12/2019

Wood to Dismiss 18 First Amended Class Action, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Stout (Attachment: # 1 Exhibit A)(Milnes, Lydia)
46 REVISED RULE 26(f) REPORT OF PLANNING MEETING by John Baxley, Jr., Samuel W. Stout, Eric L. Jones, Joseph Wood, Betsy Jividen (Milnes, Lydia) (Modified on 10/10/2019 to add party filers)(ts).
47 STIPULATION to hold 37 , 39 , 41 Motions in abeyance until 4/10/2020 by John Baxley, Jr, Eric L. Jones, Samuel W. Stout, Betsy Jividen (Milnes, Lydia) (Modified on 10/10/2019 to add links to ## 37, 39, 41 motions and to add party filers) (ts).
48 CERTIFICATE OF SERVICE by John Baxley, Jr for First Set of Interrogatories, Requests for Production, and Requests for Admission. (Milnes, Lydia)
49 SCHEDULING ORDER pursuant to the 46 REVISED RULE 26(f) REPORT OF PLANNING MEETING directing as follows: Discovery on Class Certification will begin on 10/8/2019. Joinder of Parties due by 12/13/2019. Case Management Conference set for 2/3/2020 at 11:30 AM in Huntington; all lead counsel will attend in person. Motion for class certification and any dispositive motions on putative class representatives are due by 4/10/2020; responses to motion for class certification and any dispositive motions are due by 4/24/2020; replies to motion for class certification and dispositive motions are due by 5/1/2020; further denying Defendants' 37 , 39 , 41 MOTIONS to Dismiss as premature; Motions to Dismiss may be refiled at the appropriate time. Signed by Judge Robert C. Chambers on 10/10/2019. (cc: counsel of record; any unrepresented parties) (hkl) (Modified on 10/10/2019 to add link to #46 revised report of planning meeting) (mkw).
50 CERTIFICATE OF SERVICE by John Baxley, Jr,Samuel W. Stout, Eric L. Jones for Rule 26(a)(1) Disclosures. (Milnes, Lydia) (Modified on 10/21/2019 to add party filers)(ts).
51 CERTIFICATE OF SERVICE by Betsy Jividen, Western Regional Jail, Joseph Wood for Rule 26(a)(1) Initial Disclosures. (Marino, Briana)
52 CERTIFICATE OF SERVICE by Betsy Jividen, Joseph Wood for Answers to Plaintiffs' First Set of Request for Production of Documents (Marino, Briana)

11/12/2019 11/12/2019 11/18/2019 11/19/2019 11/26/2019 11/27/2019 12/09/2019 12/09/2019
12/11/2019 12/11/2019 12/13/2019

53 AMENDED CERTIFICATE OF SERVICE by Betsy Jividen, Joseph Wood for Answers to Plaintiff's First Set of Request for Admissions (amended). (Marino, Briana)
54 CERTIFICATE OF SERVICE by Betsy Jividen, Joseph Wood for Answers to Plaintiffs' First Set of Interrogatories. (Marino, Briana)
55 JOINT MOTION by John Baxley, Jr, Samuel W. Stout, Eric L. Jones, Joseph Wood, Betsy Jividen for Protective Order (Attachment: # 1 Proposed Order) (Milnes, Lydia) (Modified on 11/19/2019 to add party filers) (ts).
56 PROTECTIVE ORDER setting forth the terms for the handling of confidential documents. Signed by Magistrate Judge Cheryl A. Eifert on 11/19/2019. (cc: counsel of record; any unrepresented party) (hkl)
57 CERTIFICATE OF SERVICE by John Baxley, Jr for Second Set of Interrogatories, and Requests for Production of Documents to Defendants. (Wagner, Jennifer)
58 CERTIFICATE OF SERVICE by Betsy Jividen, Joseph Wood for Answers to Plaintiffs' First Set of Requests for Production of Documents. (Marino, Briana)
59 NOTICE of Rule 34 Inspection by John Baxley, Jr, Eric L. Jones, Samuel W. Stout (Wagner, Jennifer) (Modified on 12/9/2019 to add party filers)(ts).
60 NOTICE OF RULE 30(B)(6) DEPOSITION by John Baxley, Jr, Samuel W. Stout, Eric L. Jones of the West Virginia Division of Corrections and Rehabilitation at Western Regional Jail Representative on 1/17/2020 at 1:00 p.m. (Wagner, Jennifer) (Modified on 12/9/2019 to convert event to notice to take or amend deposition and to add party filers) (ts).
61 MOTION by John Baxley, Jr to Compel Discovery (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Wagner, Jennifer)
MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 61 MOTION by John Baxley, Jr to Compel Discovery. (ts) (Entered: 12/12/2019)
62 MOTION by John Baxley, Jr, Eric L. Jones, Samuel W. Stout to File Second Amended Complaint (Attachment: # 1 Exhibit 1 - Second Amended Complaint)(Milnes, Lydia) (Modified on 12/17/2019 to add party filers) (ts).

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12/24/2019 12/24/2019 12/26/2019 01/02/2020

63 CERTIFICATE OF SERVICE by Betsy Jividen, Western Regional Jail, Joseph Wood for First Supplemental Responses to Plaintiffs' First Set of Requests for Production of Documents. (Marino, Briana)
64 JOINT STIPULATION EXTENDING DEADLINE for Plaintiffs to file an amended motion to compel relating to Plaintiffs' First Set of Interrogatories and Requests for Production of Documents dated October 10, 2019 (Marino, Briana) (Modified on 12/19/2019 to modify party filers) (ts).
65 CERTIFICATE OF SERVICE by Betsy Jividen, Western Regional Jail, Joseph Wood for Second Supplemental Responses to Plaintiffs' First Set of Requests for Production of Documents. (Marino, Briana)
66 ORDER granting Plaintiffs' 62 MOTION to File Second Amended Complaint and directing the Clerk of Court to file the same. Signed by Judge Robert C. Chambers on 12/19/2019. (cc: counsel of record; any unrepresented parties) (jsa)
67 FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF by Samuel W. Stout, John Baxley, Jr, Eric L. Jones, Donna Wells-Wright, Robert Watson, Heather Reed, Joshua Hall, Amber Arnett, Earl Edmondson, Danny Spiker, Jr. against Betsy Jividen, West Virginia Division of Corrections and Rehabilitation, Shelbey Searls, Western Regional Jail and Correctional Facility. (jsa)
68 AMENDED NOTICE OF DEPOSITION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel W. Stout, Samuel Stout, Robert Watson, Donna Wells-Wright of Superintendent Shelby Searls on January 17, 2020 at 1:00 p.m. (Wagner, Jennifer)
69 NOTICE OF EVIDENTIARY DEPOSITION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel W. Stout, Samuel Stout, Robert Watson, Donna Wells-Wright of Debbie Hissom on January 10, 2020 at 10:00 a.m. (Wagner, Jennifer)
70 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls, Western Regional Jail and Correctional Facility for First Supplemental Answers to Plaintiffs' First Set of Interrogatories. (Marino, Briana)
71 JOINT STIPULATION EXTENDING TIME for Plaintiffs to file an amended/supplemental motion to compel by Betsy Jividen, Shelbey Searls, Western Regional Jail and Correctional Facility, Samuel Stout,

01/02/2020 01/02/2020 01/02/2020 01/02/2020 01/02/2020 01/03/2020
01/03/2020 01/03/2020 01/09/2020 01/13/2020

Eric L. Jones, John Baxley, Jr. (Marino, Briana) (Modified on 1/3/2020 to add party filers) (ts).
72 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Answers to Plaintiffs' Second Set of Requests for Production. (Marino, Briana)
73 CERTIFICATE OF SERVICE by Shelbey Searls for First Set of Requests for Production of Documents to Eric Jones. (Marino, Briana)
74 NOTICE OF DEPOSITION by John Baxley, Jr of PrimeCare Medical, Inc. on February 21, 2020 at 10:00 a.m. (Attachment: # 1 Subpoena)(Wagner, Jennifer)
75 FIRST AMENDED NOTICE OF DEPOSITION by John Baxley, Jr of Debbie Hissom on January 24, 2020 at 9:00 a.m. (Wagner, Jennifer)
76 NOTICE of Intent to Serve Subpoena Upon PrimeCare Medical, Inc. by John Baxley, Jr (Attachment: # 1 Subpoena)(Wagner, Jennifer)
77 STIPULATION REGARDING ACCEPTANCE OF SERVICE AND ANSWER DEADLINE by John Baxley, Jr., ERic L. Jones, Samuel Stout, Amber Arnett, Earl Edmondson, Joshua Hall, Donna WellsWright, Robert Watson Heather Reed, Danny Spiker, Jr., Betsy Jividen, West Virginia Division of Corrections and Rehabilitation, Shelbey Searls, said parties stipulate to the acceptance of service of the 67 Second Amended Complaint and jointly agree to extend the deadline for all Defendants to file an Answer to 2/3/2020. (Milnes, Lydia) (Modified on 1/3/2020 to add party filers and to add link to the #67 second amended complaint) (mkw).
78 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for First Supplemental Answers to Plaintiffs' Second Set of Requests for Production of Documents. (Marino, Briana)
RESET DEADLINE: Defendants Betsy Jividen, Shelbey Searls, West Virginia Division of Corrections and Rehabilitation, Western Regional Jail and Correctional Facility answer due 2/3/2020 pursuant to the 77 Stipulation. (mkw)
79 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Third Supplemental Responses to Plaintiffs' First Set of Requests for Production of Documents. (Marino, Briana)
80 CERTIFICATE OF SERVICE by Shelbey Searls for First Set of Requests for Production of Documents to John Baxley, Jr.(Marino, Briana)

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01/29/2020 01/29/2020 02/03/2020 02/03/2020
02/03/2020 02/03/2020 02/03/2020 02/03/2020

81 MOTION by Betsy Jividen, Shelbey Searls for Leave to File ThirdParty Complaint and Cross-Claims (Marino, Briana)
82 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Second Supplemental Responses to Plaintiffs' Second Set of Requests for Production of Documents. (Marino, Briana)
83 RESPONSE by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Robert Watson, Donna Wells-Wright in opposition to 81 MOTION by Betsy Jividen, Shelbey Searls for Leave to File Third-Party Complaint and Cross-Claims (Wagner, Jennifer)
84 CERTIFICATE OF SERVICE by Shelbey Searls for First Set of Requests for Production of Documents to Samuel Stout. (Marino, Briana)
85 CERTIFICATE OF SERVICE by Betsy Jividen for First Set of Interrogatories to Plaintiffs. (Marino, Briana)
86 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls, Superintendent of Western Regional Jail's First Set of Requests for Production to Eric Jones. (Milnes, Lydia)
87 ORDER directing that a hearing on the 61 MOTION by John Baxley, Jr. to Compel Discovery shall take place on 2/10/2020 at 3:00 PM in Huntington before Magistrate Judge Cheryl A. Eifert. Signed by Magistrate Judge Cheryl A. Eifert on 2/3/2020. (cc: counsel of record; any unrepresented parties) (hkl)
88 MOTION by Plaintiffs to Certify Class (Attachments: # 1 Affidavit, # 2 Affidavit)(Milnes, Lydia) (Modified on 2/3/2020 to add party filers) (ts).
89 MEMORANDUM OF LAW by Plaintiffs in support of 88 MOTION by Plaintiffs to Certify Class (Milnes, Lydia) (Modified on 2/3/2020 to add party filers) (ts).
90 CASE MANAGEMENT CONFERENCE held by Judge Robert C. Chambers on 2/3/2020; Court Reporter: Kathy Swinhart. (trj)
91 RENEWED MOTION by Betsy Jividen, Shelbey Searls to Dismiss 67 Amended Complaint, or in the Alternative, MOTION for Summary Judgment Regarding Plaintiff Baxley. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marino, Briana) (Modified on 2/5/2020 to add motion for summary judgment event)(ts).

02/03/2020

92 MEMORANDUM OF LAW by Betsy Jividen, Shelbey Searls in support of 91 RENEWED MOTION by Betsy Jividen, Shelbey Searls to Dismiss 67 Amended Complaint, or in the Alternative, MOTION for Summary Judgment Regarding Plaintiff Baxley (Marino, Briana)

02/03/2020

93 RENEWED MOTION by Betsy Jividen, Shelbey Searls to Dismiss 67 Amended Complaint, or in the Alternative, MOTION for Summary Judgment Regarding Eric Jones. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marino, Briana) (Modified on 2/5/2020 to add event motion for summary judgment) (ts).

02/03/2020

94 MEMORANDUM OF LAW by Betsy Jividen, Shelbey Searls in support of 93 RENEWED MOTION by Betsy Jividen, Shelbey Searls to Dismiss 67 Amended Complaint, or in the Alternative, MOTION for Summary Judgment Regarding Eric Jones (Marino, Briana)

02/03/2020

95 RENEWED MOTION by Betsy Jividen, Shelbey Searls to Dismiss 67 Amended Complaint, or in the Alternative, MOTION for Summary Judgment Regarding Stout (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marino, Briana). (Modified on 2/5/2020 to add summary judgment event) (ts).

02/03/2020

96 MEMORANDUM OF LAW by Betsy Jividen, Shelbey Searls in support of 95 RENEWED MOTION by Betsy Jividen, Shelbey Searls to Dismiss 67 Amended Complaint, or in the Alternative, MOTION for Summary Judgment Regarding Stout (Marino, Briana)

02/04/2020

97 ANSWER TO 67 Amended Complaint by Betsy Jividen, Shelbey Searls and THIRD PARTY COMPLAINT by Betsy Jividen against Primecare Medical of WV, Inc., Wexford Health Sources Inc. (Attachment: # 1 Exhibit 1)(Marino, Briana)

02/04/2020

98 ORDER directing that response memoranda be filed within twenty-one days from the date of service of a given motion, and that reply memoranda be filed within twenty-one days from the date of service of a given response memorandum. Signed by Judge Robert C. Chambers on 2/4/2020. (cc: counsel of record; any unrepresented parties) (jsa)

02/04/2020

99 REPLY by Shelbey Searls, Betsy Jividen to 83 Response in Opposition (Attachment: # 1 Exhibit 1)(Marino, Briana) (Modified on 2/5/2020 to correct link to #83 response in opposition and to add party filer) (ts).

02/05/2020 100 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Fourth Supplemental Answers to Plaintiffs' First Set of Request for Production of Documents. (Marino, Briana)

02/06/2020 101 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Third Supplemental Answers to Plaintiffs' Second Set of Requests for Production of Documents. (Marino, Briana)

02/07/2020 102 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Answers to Plaintiffs' Second Set of Interrogatories. (Marino, Briana)

02/07/2020 103 AMENDED CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Answers to Plaintiffs' Second Set of Interrogatories. (Marino, Briana)

02/09/2020

104 CONSENT MOTION by Amber Arnett, John Baxley, Jr., Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr., Samuel Stout, Robert Watson, Donna Wells-Wright to Continue Hearing on 61 Motion by John Baxley, Jr. to Compel Discovery. (Wagner, Jennifer) (Modified on 2/10/2020 to add link to #61 motion) (mkw).

02/09/2020

MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 104 CONSENT MOTION by Amber Arnett, John Baxley, Jr., Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr., Samuel Stout, Robert Watson, Donna Wells-Wright to Continue Hearing on 61 Motion by John Baxley. Jr. to Compel Discovery. (mkw) (Entered: 02/10/2020)

02/10/2020

105 ORDER granting the parties' 104 CONSENT MOTION to Continue Hearing on Motion to Compel; canceling the hearing on the pending motion to compel currently scheduled to take place on 2/10/2020 at 3:00 PM. Signed by Magistrate Judge Cheryl A. Eifert on 2/10/2020. (cc: counsel of record; any unrepresented parties) (hkl)

02/10/2020

106 ORDER directing that a hearing on Plaintiffs' 61 MOTION to Compel Discovery is set for 3/9/2020 at 1:30 PM in Huntington before Magistrate Judge Cheryl A. Eifert. Signed by Magistrate Judge Cheryl A. Eifert on 2/10/2020. (cc: counsel of record; any unrepresented parties) (jsa)

02/11/2020 107 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls, Superintendent of Western Regional Jail's First Set of Requests for Production to John Baxley Jr. (Milnes, Lydia)

02/12/2020

108 MOTION by Betsy Jividen, Shelbey Searls for Leave to Take the Deposition of Incarcerated Individuals Named as Putative Class Representatives (Marino, Briana)

02/12/2020 110 MEMORANDUM OPINION AND ORDER denying Defendants Betsy Jividen and Shelby Searls' 81 MOTION for Leave to File a Third-Party

Complaint and Cross-Claims. Signed by Judge Robert C. Chambers on 2/12/2020. (cc: counsel of record; any unrepresented parties) (jsa)

02/12/2020

MOTIONS REFERRED to Magistrate Judge Cheryl A. Eifert: 108 MOTION by Betsy Jividen, Shelbey Searls for Leave to Take the Deposition of Incarcerated Individuals Named as Putative Class Representatives, 109 MOTION by Betsy Jividen, Shelbey Searls for Leave to Take Deposition of Ronnie Lee Hammonds, an Incarcerated Individual (ts)

02/13/2020

111 ORDER granting Defendants' 108 MOTION for Leave to Take the Deposition of Incarcerated Individuals Named as Putative Class Representatives; granting Defendants' 109 MOTION for Leave to Take the Deposition of R. H., an Incarcerated Individual; directing Defendants to make the necessary arrangements with the correctional facilities at which the witnesses are housed and provide the facilities with a copy of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 2/13/2020. (cc: counsel of record; any unrepresented party) (hkl)

02/13/2020

112 MEMORANDUM OPINION AND ORDER SEALING MOTION directing the Clerk to seal Defendants' 109 MOTION for Leave to Take Deposition. Signed by Magistrate Judge Cheryl A. Eifert on 2/13/2020. (cc: counsel of record; any unrepresented parties) (jsa)

02/18/2020 113 JOINT MOTION by John Baxley, Jr, Defendants To Clarify Briefing Deadlines (Milnes, Lydia) (Modified on 2/20/2020 to add party filers) (ts).

02/19/2020

114 ORDER granting the parties' 113 JOINT MOTION to Clarify Briefing Deadlines; clarifying that the extended briefing deadlines outlined in this Court's 2/4/2020 98 Order apply as of the date set forth in the Court's prior scheduling order for the filing of motions for class certification and dispositive motions; response briefs are due on or before 5/1/2020, and reply briefs are due on or before 5/22/2020. Signed by Judge Robert C. Chambers on 2/19/2020. (cc: counsel of record; any unrepresented parties) (jsa)

02/24/2020 115 NOTICE OF DEPOSITION by John Baxley, Jr of Lance Yardley on March 23, 2020 at 9:30 a.m. (Milnes, Lydia)

02/24/2020 116 NOTICE OF DEPOSITION by John Baxley, Jr of Marvin Plumley on March 23, 2020 at 1:00 p.m. (Milnes, Lydia)

02/24/2020 117 NOTICE OF DEPOSITION by John Baxley, Jr of J.T. Binion on March 11, 2020 at 9:30 a.m. (Milnes, Lydia)

02/24/2020 118 NOTICE OF DEPOSITION by John Baxley, Jr of Betty Slack on March 11, 2020 at 1:00 p.m. (Milnes, Lydia)

02/24/2020 119 NOTICE OF DEPOSITION by John Baxley, Jr of Mickey Skeens on March 11, 2020 at 11:00 a.m. (Milnes, Lydia)

02/25/2020 120 NOTICE OF RULE 30(B)(6) DEPOSITION by John Baxley, Jr of Representative of WV DOCR on March 9, 2020 at 9:30 a.m. (Milnes, Lydia)

02/25/2020

121 NOTICE TO TAKE VIDEOTAPED DEPOSITION by Betsy Jividen, Shelbey Searls of Ronnie Hammonds on March 25, 2020 at 10:00 am (Marino, Briana)

02/25/2020 122 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Fourth Supplemental Responses to Plaintiffs' Second Set of Requests for Production of Documents. (Marino, Briana)

02/27/2020 123 NOTICE OF DEPOSITION by Betsy Jividen, Shelbey Searls of Donna Wells-Wright on April 2, 2020 at 11:00 a.m. (Marino, Briana)

02/27/2020 124 NOTICE OF DEPOSITION by Betsy Jividen, Shelbey Searls of Heather Reed on April 1, 2020 at 1:00 p.m. (Marino, Briana)

02/27/2020 125 NOTICE OF DEPOSITION by Betsy Jividen, Shelbey Searls of John Baxley, Jr. on April 1, 2020 at 11:00 a.m. (Marino, Briana)

02/27/2020 126 NOTICE OF DEPOSITION by Betsy Jividen, Shelbey Searls of Robert Watson on March 24, 2020 at 1:00 p.m. (Marino, Briana)

02/27/2020 127 NOTICE OF DEPOSITION by Betsy Jividen, Shelbey Searls of Samuel Stout on March 25, 2020 at 1:30 p.m. (Marino, Briana)

02/27/2020 128 NOTICE OF DEPOSITION by Betsy Jividen, Shelbey Searls of Joshua Hall on April 3, 2020 at 11:00 a.m. (Marino, Briana)

02/28/2020

129 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Betsy Jividen, Commissioner of the West Virginia Division of Corrections and Rehabilitation's First Set of Interrogatories to Plaintiffs. (Milnes, Lydia)

02/28/2020

130 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls, Superintendent of Western Regional Jails First Set of Requests for Production of Documents to Samuel Stout. (Milnes, Lydia)

02/28/2020 131 SECOND MOTION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Samuel

Stout, Robert Watson, Donna Wells-Wright, Eric Jones to Compel Discovery (Attachments: # 1 Defs.' Resp to 1st Set of Interrogatories, # 2 Defs.' Resp. to 2nd Set of Requests for Production of Documents)(Wagner, Jennifer) (Modified on 3/2/2020 to add party filer) (ts)

02/28/2020

MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 131 MOTION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright, Eric Jones to Compel Discovery. (ts) (Entered: 03/02/2020)

03/03/2020 132 NOTICE OF APPEARANCE by Webster J. Arceneaux, III, Richard Gottlieb, James C. Stebbins, Valerie H. Raupp on behalf of Betsy Jividen, Shelbey Searls. (Arceneaux, Webster)

03/06/2020 133 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Supplemental Response to Plaintiffs First Set of Requests for Production. (Arceneaux, Webster)

03/06/2020 134 CERTIFICATE OF SERVICE by Shelbey Searls for Second Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 135 CERTIFICATE OF SERVICE by Shelbey Searls for Second Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 136 CERTIFICATE OF SERVICE by Shelbey Searls for Second Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 137 CERTIFICATE OF SERVICE by Shelbey Searls for First Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 138 CERTIFICATE OF SERVICE by Shelbey Searls for First Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 139 CERTIFICATE OF SERVICE by Shelbey Searls for Second Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 140 CERTIFICATE OF SERVICE by Shelbey Searls for Second Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 141 CERTIFICATE OF SERVICE by Shelbey Searls for Second Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 142 CERTIFICATE OF SERVICE by Shelbey Searls for Second Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/06/2020 143 CERTIFICATE OF SERVICE by Shelbey Searls for Second Set of Interrogatories and Requests for Production. (Arceneaux, Webster)

03/09/2020 144 CERTIFICATE OF SERVICE by John Baxley, Jr for Notice of Intent to Serve Subpoena. (Milnes, Lydia)

03/09/2020 145 CERTIFICATE OF SERVICE by John Baxley, Jr for Notice of Intent to Serve Subpoena. (Milnes, Lydia)

03/09/2020

146 NOTICE OF DEPOSITION by John Baxley, Jr of PsiMed Corrections, LLC on March 31, 2020 at 10:00 a.m. (Attachment: # 1 Subpoena to Testify)(Milnes, Lydia)

03/09/2020 147 NOTICE OF DEPOSITION by John Baxley, Jr of Wexford Health Sources, Inc. on March 30, 2020 at 10:00 a.m. (Attachment: # 1 Subpoena to Testify)(Milnes, Lydia)

03/09/2020

148 MOTION HEARING held by Magistrate Judge Cheryl A. Eifert on 3/9/2020, re: Plaintiffs' 61 MOTION to Compel Discovery, Plaintiffs' 131 MOTION to Compel Discovery; Court Reporter: CourtSmart. (hkl)

03/09/2020

149 NOTICE OF CHANGE OF ATTORNEY INFORMATION by Rachel Kincaid appearing on behalf of John Baxley, Jr, Eric L. Jones, Samuel Stout. (Kincaid, Rachel)

03/10/2020

150 ORDER granting in part and denying in part Plaintiffs' 61 MOTION and 131 SECOND MOTION to Compel Discovery, as more fully set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 3/10/2020. (cc: counsel of record; any unrepresented parties) (hkl)

03/10/2020

151 CERTIFICATE OF SERVICE by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright for Third Combined Discovery Requests. (Wagner, Jennifer)

03/11/2020

152 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Sixth Supplemental Answers to Plaintiffs' First Set of Requests for Production of Documents. (Arceneaux, Webster) .

03/11/2020 153 NOTICE TO TAKE DEPOSITION by John Baxley, Jr of Joseph Wood on April 2, 2020 at 1:00 p.m. (Milnes, Lydia)

03/11/2020 154 NOTICE TO TAKE DEPOSITION by John Baxley, Jr of Shawn Straughn on March 24, 2020 at 3:00 p.m. (Milnes, Lydia)

03/23/2020 155 EXPEDITED MOTION by Betsy Jividen, Shelbey Searls for a NinetyDay Extension of the April 10, 202 Briefing Deadline and Request for Thirty Day Discovery Stay (Arceneaux, Webster)

03/23/2020

163 AMENDED SCHEDULING DATES IN LIGHT OF GENERAL ORDER #3 directing the following deadlines have been extended: Dispositive Motions to 04/10/20. Response Briefs to 06/01/20. Reply Deadline to 06/22/20. (cc: attys; any unrepresented party) (mwk) (Entered: 03/26/2020)

03/24/2020

156 ORDER directing that Plaintiffs file any response to Defendants' 155 EXPEDITED MOTION for a Ninety-Day Extension of the 4/10/2020 Briefing Deadline and Request for Thirty Day Discovery Stay on or before Thursday, 3/26/2020; Defendants to file any reply on or before Monday, 3/30/2020. Signed by Judge Robert C. Chambers on 3/24/2020. (cc: counsel of record; any unrepresented parties) (hkl)

03/24/2020 157 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for First Supplemental Answers to First Set of Interrogatories. (Arceneaux, Webster)

03/24/2020 158 CERTIFICATE OF SERVICE by Betsy Jividen, Shelbey Searls for Fifth Supplemental Answers to Second Set of Requests for Production of Documents. (Arceneaux, Webster)

03/24/2020

159 RESPONSE by Betsy Jividen, Shelbey Searls in opposition to 131 MOTION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright, Eric Jones to Compel Discovery (Arceneaux, Webster)

03/24/2020

160 RESPONSE by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright in support of 155 EXPEDITED MOTION by Betsy Jividen, Shelbey Searls for a Ninety-Day Extension of the April 10, 202 Briefing Deadline and Request for Thirty Day Discovery Stay. (Attachment: # 1 Proposed Order)(Kincaid, Rachel)

03/25/2020

161 EMERGENCY MOTION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright for Preliminary Injunction (Attachments: # 1 Dec. of Dr. Beyrer, # 2 Dec. of Dr. Greifinger, # 3 Dec. of Dr. Stern, # 4 Dec. of Dr. Meyer, # 5 Dec. of Dr. Golob, # 6 ACLU Request, # 7 ACLU Follow-up, # 8 WVDCR Response to ACLU)(Wagner, Jennifer)

03/26/2020

162 EXHIBITS by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel W. Stout, Robert Watson, Donna Wells-Wright in support of 161 EMERGENCY MOTION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright for Preliminary Injunction. (Wagner, Jennifer)

03/26/2020

164 ORDER granting Defendants' 155 EXPEDITED MOTION for a Ninety-Day Extension of the 4/10/2020 Briefing Deadline and a Request for Thirty Day Discovery Stay; any motions for class certification and dispositive motions on putative class representatives are due on or before 7/9/2020; responses to any motion for class certification and any dispositive motions are due on or before 7/23/2020; and any replies to those responses are due on or before 7/30/2020; the 4/9/2020 discovery deadline is extended to 5/11/2020; and written and deposition discovery in this case is stayed for thirty days; holding in abeyance Plaintiffs' request to issue an order that any mootness arguments based on the incarceration status for any putative class members who are released from custody or transferred after 4/10/2020 are barred; directing Defendants to file a response to these arguments on or before 5:00 p.m. on 3/31/2020. Signed by Judge Robert C. Chambers on 3/26/2020. (cc: counsel of record; anModified on 3/31/2020 (mkw).

03/26/2020

165 ORDER directing Defendants to file any response to the 161 MOTION by Amber Arnett, John Baxley, Jr., Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr., Samuel Stout, Robert Watson, Donna Wells-Wright for a Preliminary Injunction by 12:00 p.m. on 3/30/2020, and any reply due by 12:00 p.m. on 4/1/2020; Scheduling a videoconference on this matter for 4/2/2020 at 10:00 AM in Huntington before Judge Robert C. Chambers; directing counsel for Plaintiffs and Defendants to provide by email to Courtroom Deputy Terry Justice no later than 3/30/2020, the following information, as more fully set forth herein. Signed by Judge Robert C. Chambers on 3/26/2020. (cc: attys; any unrepresented parties) (mkw)

03/27/2020

166 NOTICE OF SUPPLEMENTAL AUTHORITY by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright re: 161 EMERGENCY MOTION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright for Preliminary Injunction. (Attachments: # 1 Basank Order, # 2 Barr Memo)(Wagner, Jennifer) (Modified on 3/30/2020 to convert event to notice (other))(ts).

03/30/2020 167 RESPONSE by Betsy Jividen, Shelbey Searls to the Court's 164 Order (Arceneaux, Webster)

03/30/2020

168 RESPONSE by Shelbey Searls in opposition to 161 EMERGENCY MOTION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9)(Stebbins, James)

03/30/2020 169 EXHIBIT 3 by Betsy Jividen, Shelbey Searls in support of 168 Response In Opposition. (Stebbins, James)

03/31/2020

170 ORDER directing that Plaintiff's expert witness, Dr. Homer Venters, as well as named parties to this case, not be sequestered for the duration of the 4/2/2020 hearing. Signed by Judge Robert C. Chambers on 3/31/2020. (cc: counsel of record; any unrepresented parties) (jsa)

03/31/2020

171 ORDER directing any interested members of the public to contact the Court's Courtroom Deputy at (304) 528-7523 before 12:00 p.m. on 4/1/2020 to make arrangements to electronically observe the hearing regarding Plaintiffs' 161 EMERGENCY MOTION for Preliminary Injunction, which is currently scheduled for 10:00 a.m. on 4/2/2020. Signed by Judge Robert C. Chambers on 3/31/2020. (cc: counsel of record; any unrepresented parties) (jsa)

03/31/2020

172 AMENDED ORDER directing any interested members of the public to contact the Court's Courtroom Deputy at (304) 528-7583 before 12:00 p.m. on 4/1/2020 to make arrangements to electronically observe the hearing regarding Plaintiffs' 161 EMERGENCY MOTION for Preliminary Injunction, which is currently scheduled for 10:00 a.m. on 4/2/2020. Signed by Judge Robert C. Chambers on 3/31/2020. (cc: counsel of record; any unrepresented parties) (jsa)

04/01/2020

173 REPLY by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna WellsWright to 168 Response In Opposition. (Attachments: # 1 Exhibit A (Sample COVID-19 Plan), # 2 Exhibit B (WVSCA Memo), # 3 Thakker Order)(Wagner, Jennifer)

04/01/2020 174 EXHIBIT by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Robert Watson, Donna WellsWright in support of 173 Reply to Response. (Wagner, Jennifer)

04/01/2020 175 TELEPHONIC STATUS CONFERENCE held by Judge Robert C. Chambers on 4/1/2020; Court Reporter Kathy Swinhart. (trj)

04/01/2020

176 ORDER directing Defendants to provide a redacted copy of the Defendants' COVID-19 response plan to the Court, Plaintiffs' counsel, and their expert witness on or before 5:00 p.m. today; further directing that copies of the redacted plan may not be viewed by anyone other than Plaintiffs' counsel or their designated expert without prior court approval; further directing Defendants to provide an explanation of the subject matter that has been redacted and how it relates to their security concerns; following receipt of the plan, Plaintiffs are directed to provide a declaration responding to the plan from their expert witness, Dr. Homer Venter, to the Court and Defendants' counsel on or before 5:00 p.m. tomorrow, 4/2/2020; further directing Defendants to provide a response to Plaintiffs' expert's declaration on or before 3:00 p.m. on Friday, 4/3/2020; the documents provided pursuant to this Order need not be filed pending the hearing; rescheduling the hearing in this matter presently scheduled for 4/2/2020 at 10:00 a.m. to Monday, 4/6/2020 at 10:00 a.m.; any members of the public who are interested in attending the hearing must contact the Court's Courtroom Deputy at (304) 5287583 before 12:00 p.m. on Friday, 4/3/2020 to make arrangements to participate. Signed by Judge Robert C. Chambers on 4/1/2020. (cc: counsel of record; any unrepresented parties) (jsa)

04/01/2020

177 RETURN OF SERVICE ON SUBPOENA for Record Custodian, PsiMed Corrections, LLC; service accepted by the WV Secretary of State on 3/25/2020. Certified Number: 92148901125134100002695269. (arb)

04/01/2020

178 RETURN OF SERVICE ON SUBPOENA for Record Custodian, Wexford Health Sources, Inc.; service accepted by the WV Secretary of State on 3/25/2020. Certified Number: 92148901125134100002695252. (arb)

04/03/2020

179 ORDER directing Defendants to provide, by verified declaration or affidavit, specific responses to each item listed in Paragraph 18 of Plaintiff's Expert's Affidavit submitted in response to the Court's 176 Order, as more fully set forth herein. Signed by Judge Robert C. Chambers on 4/3/2020. (cc: counsel of record; any unrepresented parties) (jsa)

04/06/2020 180 VIDEO MOTION HEARING held by Judge Robert C. Chambers on 4/6/2020; Court Reporter: Kathy Swinhart. (trj)

04/06/2020

181 EXHIBITS by Defendants Betsy Jividen, Shelbey Searls, West Virginia Division of Corrections and Rehabilitation for motion hearing held 4/6/2020. (Sealed on the record pursuant to the motion hearing held 4/6/2020 and unsealed with the exception of Exhibit #6 pursuant to the 199 memorandum opinion and order) (Attachments: # 1 Exhibit 1 -

Commissioner Jividen Affidavit, # 2 Exhibit 2 - Marvin Plumley Affidavit, # 3 Exhibit 3 - Debbie Hisson Affidavit, # 4 Exhibit 4 March 20 Commissioner Policy Directive, # 5 Exhibit 5 - March 26 Commissioner Memo, # 6 Exhibit 6 - Defendants' Court Ordered Response to Plaintiffs' Expert Declaration, # 7 Exhibit 7 - Venters CV, # 8 Exhibit 8 - Occupancy Chart, # 9 Exhibit 9 - Venters Affidavit) (mkw) (Modified on 4/23/2020 to unseal certain exhibits pursuant to the #199 memorandum opinion and order) (mkw).

04/07/2020 182 MOTION by Betsy Jividen, Shelbey Searls to Substitute Party (Arceneaux, Webster)

04/08/2020

183 MEMORANDUM OPINION AND ORDER denying Plaintiffs' 161 EMERGENCY MOTION for Preliminary Injunction. Signed by Judge Robert C. Chambers on 4/8/2020. (cc: counsel of record; any unrepresented parties) (jsa)

04/08/2020

184 ORDER granting Defendant's 182 MOTION for Substitution of Official Party Under Fed. R. Civ. P. 25(d). Signed by Judge Robert C. Chambers on 4/8/2020. (cc: counsel of record; any unrepresented parties) (jsa)

04/08/2020 185 SUBPOENA RETURNED UNEXECUTED BY SECRETARY OF STATE as to PsiMed Corrections, LLC. (jsa)

04/10/2020 186 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia for Leave to Intervene for the Limited Purpose of Seeking to Unseal Court Records. (Stark, Loree)

04/10/2020

187 MEMORANDUM by the American Civil Liberties Union of West Virginia in support of 186 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia to Intervene for the Limited Purpose of Seeking to Unseal Court Records. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Stark, Loree)

04/10/2020 188 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia to Unseal Court Records. (Stark, Loree)

04/10/2020

189 MEMORANDUM by the American Civil Liberties Union of West Virginia in support of 188 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia to Unseal Court Records. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Stark, Loree)

04/13/2020 190 ORDER regarding the 186 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia for Leave to Intervene for the Limited Purpose of Seeking to Unseal Court Records

and 188 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia to Unseal Court Records; directing Defendants to file any response concerning ACLU's motion to intervene by 4/14/2020 at 12:00 p.m., and for the ACLU to file any reply by 4/14/2020 at 5:00 p.m.; if the Court permits the ACLU to intervene, it similarly intends to expedite consideration of the remainder of the Motion. Signed by Judge Robert C. Chambers on 4/13/2020. (cc: counsel of record; any unrepresented parties) (jsa) (Modified on 4/13/2020 to add link to #186 motion) (mkw).

04/14/2020

191 RESPONSE by Carl Aldridge, Betsy Jividen in opposition to 186 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia for Leave to Intervene for the Limited Purpose of Seeking to Unseal Court Records (Stebbins, James)

04/14/2020 192 REPLY by American Civil Liberties Union of West Virginia to 191 Response In Opposition. (Stark, Loree)

04/15/2020

193 ORDER granting the 186 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia for Leave to Intervene for the Limited Purpose of Seeking to Unseal Court Records. Signed by Judge Robert C. Chambers on 4/15/2020. (cc: counsel of record; any unrepresented parties) (jsa)

04/15/2020

194 ORDER directing Defendants to respond to the 188 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia to Unseal Court Records on or before 1:00 p.m. on 4/17/2020, and for Movant to file any reply on or before 1:00 p.m. on 4/20/2020. Signed by Judge Robert C. Chambers on 4/15/2020. (cc: counsel of record; any unrepresented parties) (jsa)

04/17/2020

195 TRANSCRIPT OF PROCEEDINGS of Video Motion Hearing held on April 6, 2020, before Judge Robert C. Chambers. Court Reporter Kathy Swinhart, Telephone number 304-528-7583. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due 4/27/2020. Redaction Request due 5/8/2020. Redacted Transcript Deadline set for 5/18/2020. Release of Transcript Restriction set for 7/16/2020. (kls)

04/17/2020

196 RESPONSE by Carl Aldridge, Betsy Jividen in opposition to 188 EXPEDITED MOTION by the American Civil Liberties Union of West Virginia to Unseal Court Records (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Arceneaux, Webster)

04/20/2020 197 REPLY by American Civil Liberties Union of West Virginia to 196 Response In Opposition. (Stark, Loree)

04/22/2020

198 SUPPLEMENT TO RESPONSE by Carl Aldridge, Betsy Jividen in support of 196 Response In Opposition. (Attachment: # 1 Exhibit 1)(Arceneaux, Webster)

04/23/2020

199 MEMORANDUM OPINION AND ORDER granting in part and denying in part the 188 EXPEDITED MOTION to Unseal Court Records filed by Intervernor American Civil Liberties Union of West Virginia; directing that the documents filed as ECF Nos. 181-1, 181-2, 181-3, 181-4, 181-5, 181-7, 181-8, and 181-9 be unsealed; denying in part the Motion to unseal the document filed as ECF 181-6 in its entirety, and instead directing Defendants to file a redacted copy of the exhibit removing any identifying references to non-party inmates on or before 4/27/2020 at 5:00 p.m.; denying in part the Motion to the extent Intervenor requests an order requiring Defendants to file an unredacted version of Commissioner Jividen's 3/20/2020 Policy Directive. Signed by Judge Robert C. Chambers on 4/23/2020. (cc: counsel of record; any unrepresented parties) (jsa)

04/24/2020

200 RESPONSE TO COURT ORDER by Betsy Jividen re: 199 Memorandum Opinion and Order. (Arceneaux, Webster) (Modified on 4/27/2020 to convert event to response to court order) (ts).

04/27/2020

201 AMENDED NOTICE OF DEPOSITION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel Stout, Robert Watson, Donna Wells-Wright of PsiMed Corrections, LLC on May 7, 2020 at 10:00 a.m. (Attachment: # 1 Subpoena)(Milnes, Lydia)

04/27/2020

202 AMENDED NOTICE OF DEPOSITION by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr, Samuel W. Stout, Robert Watson, Donna WellsWright of Wexford Health Sources, Inc. on May 28, 2020 at 10:00 a.m. (Attachment: # 1 Subpoena)(Milnes, Lydia)

05/01/2020

203 STIPULATION EXTENDING TIME to conduct discovery to June 22, 2020 by Carl Aldridge (Arceneaux, Webster) (Modified on 5/3/2020 to remove links to ECF #s) (ts).

05/05/2020 204 AMENDED NOTICE OF VIDEO DEPOSITION by John Baxley, Jr of Superintendent Shawn Straughn on May 14, 2020 at 10:00 AM (Milnes, Lydia)

05/05/2020 205 AMENDED NOTICE OF VIDEO DEPOSITION by John Baxley, Jr of Joseph Wood on May 15, 2020 at 10:00 AM (Milnes, Lydia)

05/07/2020 206 AMENDED NOTICE OF DEPOSITION by Betsy Jividen of Heather Reed on May 27, 2020 at 10:00 a.m. (Arceneaux, Webster)

05/07/2020 207 AMENDED NOTICE OF DEPOSITION by Betsy Jividen of John Baxley on May 29, 2020 at 9:00 a.m. (Arceneaux, Webster)

05/07/2020 208 AMENDED NOTICE OF DEPOSITION by Betsy Jividen of Joshua Hall on May 29, 2020 at 1:00 p.m. (Arceneaux, Webster)

05/07/2020 209 AMENDED NOTICE OF DEPOSITION by Betsy Jividen of Robert Watson on June 3, 2020 at 10:00 a.m. (Arceneaux, Webster)

05/07/2020 210 AMENDED NOTICE OF DEPOSITION by Betsy Jividen of Ronnie Lee Hammonds on May 26, 2020 at 10:00 a.m. (Arceneaux, Webster)

05/07/2020 211 NOTICE OF DEPOSITION by Betsy Jividen of Amber Arnett on June 8, 2020 at 10:00 a.m.(Arceneaux, Webster)

05/07/2020 212 NOTICE OF DEPOSITION by Betsy Jividen of Danny Spiker on June 4, 2020 at 10:00 a.m. (Arceneaux, Webster)

05/07/2020 213 NOTICE OF DEPOSITION by Betsy Jividen of Earl Edmondson on June 5, 2020 at 10:00 a.m. (Arceneaux, Webster)

05/11/2020 214 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls First Set of Interrogatories and Requests for Production of Documents to John Baxley, Jr. (Wagner, Jennifer)

05/11/2020 215 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls First Set of Interrogatories and Requests for Production of Documents to Robert Watson (Wagner, Jennifer)

05/11/2020 216 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls First Set of Interrogatories and Requests for Production of Documents to Heather Reed (Wagner, Jennifer)

05/11/2020

217 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls First Set of Interrogatories and Requests for Production of Documents to Earl Edmondson (Wagner, Jennifer)

05/11/2020 218 CERTIFICATE OF SERVICE by Carl Aldridge, Betsy Jividen for Answers and Responses to Plaintiffs' Third Set of Interrogatories and Requests for Documents. (Arceneaux, Webster)

05/11/2020 219 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls First Set of Interrogatories and Requests for Production of Documents to Joshua Hall (Wagner, Jennifer)

05/11/2020 220 CERTIFICATE OF SERVICE by John Baxley, Jr for Responses to Defendant Shelby Searls First Set of Interrogatories and Requests for Production of Documents to Danny Spiker, Jr (Wagner, Jennifer)

05/13/2020

221 SUBPOENA ACCEPTED FOR SERVICE BY SECRETARY OF STATE on 5/8/2020 as to Wexford Health Sources Inc. Certified Mail Number: 92148901125134100002705319. (hkl)

05/20/2020 222 CERTIFICATE OF SERVICE by John Baxley, Jr for Seventh Supplemental Responses to Ocwen Loan Servicing, LLC's First Set of Interrogatories (Wagner, Jennifer)

05/22/2020

223 STIPULATION OF VOLUNTARY DISMISSAL Without Prejudice Count III of this civil action; the allegations related to Class B in the Second Amended Class Action Complaint; Carl Aldridge, as Superintendent, as a party to this litigation; and Samuel Stout as a party and class representative by Betsy Jividen, Carl Aldridge, American Civil Liberties Union of West Virginia, Amber Arnett, John Baxley, Jr., Earl Edmondson, Joshua Hall, Eric L. Jones, Primecare Medical of WV, Inc., Heather Reed, Danny Spiker, Jr., Samuel Stout, Robert Watson, Donna Wells-Wright, West Virginia Division of Corrections and Rehabilitation, Wexford Health Sources, Inc. pursuant to Rule 41(a)(1)(A), Federal Rules of Civil Procedure; the matter shall remain pending with regard to the claims against Commissioner Jividen and the Division of Corrections and Rehabilitation as set forth in Counts I and II of the Second Amended Class Action Complaint for Injunctive and Declaratory Relief and the Class A allegations. (Arceneaux, Webster) (Modified on 5/27/2020 to add party filers) (mkw).

05/26/2020 224 NOTICE OF VIDEO DEPOSITION by John Baxley, Jr of Krista Vallandingham on June 16, 2020 at 10:00 a.m. (Wagner, Jennifer)

05/27/2020 225 CERTIFICATE OF SERVICE by Amber Arnett for Responses to Defendant Shelby Searls First Set of Interrogatories and Requests for Production of Documents to Amber Arnett. (Wagner, Jennifer)

05/29/2020

226 CERTIFICATE OF SERVICE by Betsy Jividen for First Supplemental Answers to Plaintiffs' Third Request for Production of Documents. (Arceneaux, Webster)

06/01/2020 227 NOTICE OF VIDEO DEPOSITION by Betsy Jividen of Eric Jones on June 17, 2020 at 11:00 a.m. (Stebbins, James)

06/02/2020 228 CERTIFICATE OF SERVICE by Eric L. Jones for Responses to Defendant Shelby Searls Second Set of Interrogatories and Requests for Production of Documents to Eric Jones. (Wagner, Jennifer)

06/08/2020 229 SECOND AMENDED NOTICE OF DEPOSITION by Betsy Jividen of Robert Watson on June 9, 2020 at 11:00 a.m. (Stebbins, James)

06/08/2020 230 CERTIFICATE OF SERVICE by Danny Spiker, Jr for First Supplemental Responses to Defendant Shelby Searls First set of Requests for Production of Documents. (Wagner, Jennifer)

06/08/2020 231 CERTIFICATE OF SERVICE by Donna Wells-Wright for Responses to Defendant Shelby Searls First Set of Interrogatories and Requests for Production of Documents to Donna Wells-Wright. (Milnes, Lydia)

06/09/2020 232 NOTICE OF VIDEO DEPOSITION by Betsy Jividen of Homer Venters, M.D. on June 30, 2020 at 1:00 p.m. (Stebbins, James)

06/18/2020 233 CERTIFICATE OF SERVICE by Amber Arnett for Second Supplemental Responses to Defendant Shelby Searl's First Set of Requests for Production of Documents. (Wagner, Jennifer)

06/18/2020 234 AMENDED NOTICE OF VIDEO DEPOSITION by Betsy Jividen of Homer Venters, M.D. on June 29, 2020 at 1:00 p.m. (Stebbins, James)

06/19/2020 235 NOTICE OF VIDEO DEPOSITION by Betsy Jividen of Donna WellsWright on June 23, 2020 at 11:00 a.m. (Arceneaux, Webster)

06/23/2020 236 CERTIFICATE OF SERVICE by John Baxley, Jr for Third Supplemental Responses to Defendant Shelby Searls First Set of Requests for Production of Documents. (Milnes, Lydia)

06/24/2020 237 NOTICE OF VIDEO DEPOSITION by John Baxley, Jr of Dr. Lawrence H. Mendel on July 2, 2020 at 9:00 a.m. (Wagner, Jennifer)

06/24/2020

238 THIRD MOTION by John Baxley, Jr. Amber Arnett, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr., Samuel Stout, Robert Watson, Donna Wells-Wright to Compel Discovery. (Attachments: # 1 Exhibit A: DEFENDANTS ANSWERS TO PLAINTIFFS SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS, # 2 Exhibit B: DEFENDANTS ANSWERS AND RESPONSES TO PLAINTIFFS THIRD SET OF INTERROGATORIES AND REQUESTS FOR DOCUMENTS, # 3 Exhibit C: Plaintiff's email requesting conferral meeting and follow up outline, # 4 Exhibit D: 6.22.2020 email from Defendant's counsel, # 5 Exhibit E: Baxley deposition excerpts)(Wagner, Jennifer) (Modified on 6/26/2020 to add party filers) (mkw).

06/24/2020

MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 238 THIRD MOTION by John Baxley, Jr. Amber Arnett, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr., Samuel Stout, Robert Watson, Donna Wells-Wright to Compel Discovery. (mkw) (Entered: 06/26/2020)

06/26/2020 239 SECOND AMENDED NOTICE OF VIDEO DEPOSITION by Betsy Jividen of Homer Venters, M.D. on July 1, 2020 at 2:00 p.m. (Stebbins, James)

06/26/2020 240 CERTIFICATE OF SERVICE by Betsy Jividen for Second Supplemental Answers to Plaintiffs' Third set of Requests for Production of Documents. (Arceneaux, Webster)

06/26/2020

241 CERTIFICATE OF SERVICE by Betsy Jividen for Seventh Supplemental Answers to Plaintiffs' Third set of Requests for Production of Documents. (Arceneaux, Webster)

06/26/2020

242 MOTION by John Baxley, Jr, Eric L. Jones to Compel Primecare Medical Inc. to Produce Documents Pursuant to Subpoena (Attachments: # 1 Exhibit A: Subpoena to Produce Documents, Information or Objects - PrimeCare, # 2 Exhibit B: PrimeCare Letter Referencing Subpoena, # 3 Exhibit C: Primecare subpoena - resp from Anne O'Hare)(Wagner, Jennifer) (Modified on 6/27/2020 to add party filer)(ts).

06/26/2020

MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 242 MOTION by John Baxley, Jr, Samuel Stout to Compel Primecare Medical Inc. to Produce Documents Pursuant to Subpoena (ts) (Entered: 06/27/2020)

06/30/2020 243 CERTIFICATE OF SERVICE by John Baxley, Jr for Fourth Supplemental Responses to Defendant Shelby Searls First Set of Requests for Production of Documents. (Milnes, Lydia)

06/30/2020

244 CERTIFICATE OF SERVICE by Betsy Jividen for Eighth Supplemental Answers to Plaintiffs' First set of Request for Production of Documents. (Arceneaux, Webster)

07/01/2020 245 FIRST AMENDED NOTICE OF DEPOSITION by John Baxley, Jr of Dr. Lawrence H. Mendel on July 9, 2020 at 10:00 a.m. (Wagner, Jennifer)

07/01/2020 246 NOTICE OF DEPOSITION by Betsy Jividen of Dr. Cheryl D. Wills on July 7, 2020 at 1:00 p.m. (Stebbins, James)

07/02/2020 247 CERTIFICATE OF SERVICE by Betsy Jividen for Third Supplemental Answers to Plaintiff's Third Set of Requests for Production of Documents. (Arceneaux, Webster)

07/02/2020

248 JOINT MOTION by Betsy Jividen, Plaintiffs to Extend Briefing Deadlines re: 164 Order (Attachment: # 1 Proposed Order)(Arceneaux, Webster) (Modified on 7/5/2020 to add link to #164 order and to add party filers) (ts).

07/06/2020

249 ORDER granting the parties' 248 JOINT MOTION to Extend the Briefing Deadlines; revising the briefing schedule as follows: motions for class certification and dispositive motions on putative class representatives due 7/17/2020; responses to any motion for class certification and any dispositive motions due 8/7/2020; and replies to those responses due 8/14/2020. Signed by Judge Robert C. Chambers on 7/6/2020. (cc: counsel of record; any unrepresented party) (jsa)

07/07/2020 250 CERTIFICATE OF SERVICE by John Baxley, Jr for Fifth Supplemental Responses to Defendant Shelby Searl's First Set of Requests for Production of Documents. (Milnes, Lydia)

07/08/2020

251 RESPONSE by Betsy Jividen in opposition to 238 THIRD MOTION by John Baxley, Jr. Amber Arnett, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr., Samuel Stout, Robert Watson, Donna Wells-Wright to Compel Discovery (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Stebbins, James)

07/10/2020

252 ORDER directing this case transferred to Rory L. Perry, II, Clerk of Court, for reassignment of all discovery disputes in the instant matter to another Magistrate Judge within this district. Signed by Magistrate Judge Cheryl A. Eifert on 7/10/2020. (cc: counsel of record; any unrepresented parties) (jsa)

07/10/2020

253 MOTION by PrimeCare Medical, Inc. to Quash or Modify Subpoena (Attachments: # 1 Exhibit A - Transcript of Weber, # 2 Exhibit B Affidavit of Weber)(O'Hare, Anne)

07/10/2020

MOTION REFERRED to Magistrate Judge Cheryl A. Eifert: 253 MOTION by PrimeCare Medical, Inc. to Quash or Modify Subpoena (ts) (Entered: 07/12/2020)

07/13/2020

254 CLERK'S ORDER. Pursuant to 252 Order, the referral of this civil action for discovery matters is transferred from Magistrate Judge Cheryl A. Eifert to Magistrate Judge Omar J. Aboulhosn. Signed by Clerk of Court Rory L. Perry II on 7/13/2020. (cc: Magistrate Judge Eifert; Magistrate Judge Aboulhosn; counsel of record; any unrepresented party) (klc)

07/13/2020

MOTIONS REFERRED to Omar J. Aboulhosn pursuant to 254 Order: 253 MOTION by PrimeCare Medical, Inc. to Quash or Modify Subpoena, 242 MOTION by John Baxley, Jr, Samuel Stout to Compel Primecare Medical Inc. to Produce Documents Pursuant to Subpoena, 238 THIRD MOTION by John Baxley, Jr. Amber Arnett, Earl Edmondson, Joshua Hall, Eric L. Jones, Heather Reed, Danny Spiker, Jr., Samuel Stout, Robert Watson, Donna Wells-Wright to Compel Discovery. (klc)

07/13/2020

255 ORDER setting a telephonic conference on Plaintiffs' 238 THIRD MOTION to Compel Discovery, Plaintiffs' 242 MOTION to Compel Primecare Medical Inc. to Produce Documents Pursuant to Subpoena, and PrimeCare Medical, Inc.'s 253 MOTION to Quash or Modify Subpoena for 7/16/2020 at 2:15 PM in Bluefield before Magistrate Judge Omar J. Aboulhosn. Signed by Magistrate Judge Omar J. Aboulhosn on 7/13/2020. (cc: counsel of record) (jsa)

07/15/2020 256 CERTIFICATE OF SERVICE by Betsy Jividen for Fourth Supplemental Answers to Plaintiffs' Third Set of Requests for Production of Documents. (Arceneaux, Webster)

07/15/2020 257 REPLY by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Donna Wells-Wright to 251 Response In Opposition. (Wagner, Jennifer)

07/16/2020

258 ORDER regarding Plaintiffs' Third 238 MOTION to Compel Discovery, Plaintiffs' 242 MOTION to Compel PrimeCare Medical, Inc., to Produce Documents Pursuant to Subpoena, and PrimeCare Medical, Inc.'s 253 MOTION to Quash or Modify Subpoena; a meet and confer on these outstanding issues shall occur on 7/20/2020 at 10:00 a.m.; counsel for the respective parties/entities shall email the undersigned to advise as to the results of the meet and confer no later than 7/20/2020; if the matters raised herein are not resolved, a formal joint reply/response to PrimeCare Medical, Inc.'s 253 MOTION to Quash or Modify Subpoena will be filed no later than 7/21/2020. Signed by Magistrate Judge Omar J. Aboulhosn on 7/16/2020. (cc: counsel of record) (jsa)

07/16/2020

259 CERTIFICATE OF SERVICE by Betsy Jividen for Ninth Supplemental Answers to Plaintiffs' First Set of Requests for Production of Documents. (Arceneaux, Webster)

07/16/2020 284 TELEPHONIC STATUS CONFERENCE held by Magistrate Judge Omar J. Aboulhosn on 7/16/2020. (mkw) (Entered: 07/21/2020)

07/17/2020 260 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Amber Arnett and Eric L.

Jones (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marino, Briana) (Modified on 7/20/2020 to replace exhibit 2) (ts).

07/17/2020

261 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 260 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Arnett and Jones (Marino, Briana)

07/17/2020

262 MOTION by John Baxley, Jr for Leave to File Memorandum in Support of Motion for Class Certification Brief in Excess of Page Limit (Attachment: # 1 Proposed Order)(Milnes, Lydia)

07/17/2020

263 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to John Baxley, Jr. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8-1, # 9 Exhibit 8-2, # 10 Exhibit 8-3, # 11 Exhibit 8-4, # 12 Exhibit 8-5, # 13 Exhibit 8-6, # 14 Exhibit 8-7, # 15 Exhibit 9)(Arceneaux, Webster)

07/17/2020

264 MOTION by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr., Donna Wells-Wright to Certify Class (Attachments: # 1 Exhibit Table of Contents, # 2 Exhibit 1 - Report of Correctional Medicine Expert, Dr. Homer Venters, # 3 Exhibit 2 Report of Correctional Psychiatry Expert, Dr. Cheryl Wills, # 4 Exhibit 3 - Dep. of DCRs Director of Correctional Health Care, Debbie Hissom, # 5 Exhibit 4 - Dep. of Superintendent of Western Regional Jail, Shelby Searls, # 6 Exhibit 5 - Dep. of CEO of PrimeCare, Thomas Weber, # 7 Exhibit 6 - Dep. of Medical Director of PsiMed, Timothy Thistlethwaite, # 8 Exhibit 7 - Dep. of Wexford Health Services Administrator for Northern Regional Jail, James Gray, # 9 Exhibit 8 Dep of Superintendent of Northern Regional Jail, Shawn Straughan, # 10 Exhibit 9 - Dep. of PrimeCare Regional Coordinator, Krista Vallandingham, # 11 Exhibit 10 - Dep. of PrimeCare Nurse, Susie Christian, # 12 Exhibit 11 - Dep. of J.T. Binion, DCR Regional Director 2 of Jails & Prisons, # 13 Exhibit 12 - Defendants Response to Plaintiffs Third Set of Interrogatories and RFPs, # 14 Exhibit 13 - June 22, 2020 Email from Counsel for Defendants, # 15 Exhibit 14 Excerpts of NCCHC Standards, # 16 Exhibit 15 - Dep. of Superintendent of North Central Regional Jail, Joseph Wood, # 17 Exhibit 17 - PrimeCare Contract, # 18 Exhibit 18 - Wexford Contract Excerpts, # 19 Exhibit 19 - Declaration of Lydia Milnes, # 20 Exhibit 20 - Declaration of Jennifer Wagner, # 21 Exhibit 21 Declaration of Rachel Kincaid)(Milnes, Lydia) (Modified on 7/19/2020 to add party filers) (ts).

07/17/2020

265 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 263 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to John Baxley, Jr. (Arceneaux, Webster)

07/17/2020 266 MOTION by Plaintiffs to File Exhibit Under Temporary Seal (Attachment: # 1 Exhibit 16 - Inmate Grievances)(Milnes, Lydia) (Modified on 7/19/2020 to add party filers) (ts).

07/17/2020

267 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Heather Reed (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5-1, # 6 Exhibit 5-2, # 7 Exhibit 5-3, # 8 Exhibit 5-4, # 9 Exhibit 5-5, # 10 Exhibit 5-6, # 11 Exhibit 5-7, # 12 Exhibit 6, # 13 Exhibit 7)(Arceneaux, Webster)

07/17/2020

268 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 267 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Heather Reed (Arceneaux, Webster)

07/17/2020

269 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Earl Edmondson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7-1, # 8 Exhibit 7-2, # 9 Exhibit 7-3, # 10 Exhibit 7-4, # 11 Exhibit 7-5, # 12 Exhibit 7-6, # 13 Exhibit 7-7, # 14 Exhibit 8)(Arceneaux, Webster)

07/17/2020

270 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 269 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Earl Edmondson (Arceneaux, Webster)

07/17/2020

271 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Danny Spiker (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6-1, # 7 Exhibit 6-2, # 8 Exhibit 6-3, # 9 Exhibit 6-4, # 10 Exhibit 6-5, # 11 Exhibit 6-6, # 12 Exhibit 6-7, # 13 Exhibit 7)(Arceneaux, Webster)

07/17/2020

272 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 271 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Danny Spiker (Arceneaux, Webster)

07/17/2020 273 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Donna Wells-Wright

(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6-1, # 7 Exhibit 6-2, # 8 Exhibit 6-3, # 9 Exhibit 6-4, # 10 Exhibit 6-5, # 11 Exhibit 6-6, # 12 Exhibit 6-7, # 13 Exhibit 7)(Arceneaux, Webster)

07/17/2020

274 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 273 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Donna Wells-Wright (Arceneaux, Webster)

07/17/2020

275 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Robert Watson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7-1, # 8 Exhibit 7-2, # 9 Exhibit 7-3, # 10 Exhibit 7-4, # 11 Exhibit 7-5, # 12 Exhibit 7-6, # 13 Exhibit 7-7, # 14 Exhibit 8)(Arceneaux, Webster)

07/17/2020

276 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 275 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Robert Watson (Arceneaux, Webster)

07/17/2020

277 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Joshua Hall (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 51, # 6 Exhibit 5-2, # 7 Exhibit 5-3, # 8 Exhibit 5-4, # 9 Exhibit 5-5, # 10 Exhibit 5-6, # 11 Exhibit 5-7, # 12 Exhibit 6, # 13 Exhibit 7)(Arceneaux, Webster)

07/17/2020

278 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 277 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Joshua Hall (Arceneaux, Webster)

07/17/2020

279 MEMORANDUM OF LAW by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Donna Wells-Wright in support of 264 MOTION by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr., Donna Wells-Wright to Certify Class (Wagner, Jennifer)

07/20/2020

NOTICE OF DOCKET CORRECTION re: 260 Motion by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Amber Arnett and Eric L. Jones. ERROR: Incorrect Exhibit 2 attached. CORRECTION: Exhibit 2 replaced with correct image. (ts)

07/20/2020

280 ORDER granting Plaintiffs' 262 MOTION for Leave to File Memorandum in Support of Motion for Class Certification Brief in Excess of Page Limit and Plaintiffs' 266 MOTION to File Exhibit Under Temporary Seal; directing that Exhibit 16 of Plaintiffs' Memorandum in Support of their Motion for Class Certification be temporarily sealed until 8/3/2020 and for Defendants to file any motion to extend this temporary seal by 7/27/2020. Signed by Judge Robert C. Chambers on 7/20/2020. (cc: counsel of record; any unrepresented parties) (jsa)

07/20/2020 281 EXHIBIT 16 of Plaintiffs' Memorandum in Support of their 264 Motion for Class Certification; filed under temporary seal until 8/3/2020, pursuant to the 280 Order. (jsa)

07/20/2020

282 EXHIBIT 22 by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr., Donna Wells-Wright in support of 264 MOTION by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr., Donna Wells-Wright to Certify Class. (Milnes, Lydia) (Modified on 7/20/2020 to add party filers) (ts)

07/20/2020

283 STIPULATION OF VOLUNTARY DISMISSAL Without Prejudice Robert Watson as a party and class representative pursuant to Rule 41(a)(1)(A), Federal Rules of Civil Procedure by Plaintiffs and Defendants. (Milnes, Lydia) (Modified on 7/21/2020 to add party filers) (mkw).

07/23/2020

285 ORDER finding as moot Plaintiffs' 242 MOTION to Compel PrimeCare Medical, Inc., to Produce Documents Pursuant to Subpoena and 253 MOTION to Quash or Modify Subpoena by PrimeCare Medical, Inc. and requesting the Clerk to terminate the same. Signed by Magistrate Judge Omar J. Aboulhosn on 7/23/2020. (cc: counsel of record) (jsa)

07/27/2020

286 ORDER overruling Defendants' objections to Plaintiffs' discovery requests; granting Plaintiffs' 131 SECOND MOTION and 238 THIRD MOTION to Compel Discovery, as more fully set forth herein; directing Defendants to fully and meaningfully respond to Plaintiffs' outstanding discovery requests no later than 8/3/2020; Plaintiffs may file the appropriate motion for their reasonable attorneys' fees and costs incurred in prosecuting the Motion(s) to Compel, as well as the Reply, within 14 days; Defendants' response shall be filed within 7 days after the Plaintiffs' pleading; the plaintiffs may file a reply within 3 days after the Defendants' response. Signed by Magistrate Judge Omar J. Aboulhosn on 7/27/2020. (cc: counsel of record) (jsa)

07/27/2020 287 RESPONSE by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation re: 266 MOTION by Plaintiffs to File Exhibit Under Temporary Seal (Arceneaux, Webster)

07/27/2020

288 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Leave to File Response Memorandum in Opposition to Motion for Class Certification in Excess of Page Limit (Attachment: # 1 Proposed Order Granting Motion)(Arceneaux, Webster)

07/28/2020

289 ORDER granting Defendants' 288 MOTION for Leave to File Response Memorandum in Opposition to Motion for Class Certification in Excess of Page Limit; Defendants' Memorandum is limited to forty pages. Signed by Judge Robert C. Chambers on 7/28/2020. (cc: counsel of record; any unrepresented party) (hkl)

07/28/2020

290 CERTIFICATE OF SERVICE by John Baxley, Jr for Sixth Supplemental Responses to Defendant Shelby Searls First Set of Requests for Production of Documents. (Milnes, Lydia)

07/29/2020 291 CERTIFICATE OF SERVICE by John Baxley, Jr for Seventh Supplemental Responses to Defendant Shelby Searls First Set of Requests for Production of Documents. (Milnes, Lydia)

07/29/2020 292 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to Stay re: 286 Order (Stebbins, James)

07/29/2020

293 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 292 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to Stay re: 286 Order (Stebbins, James)

07/29/2020

MOTION REFERRED to Magistrate Judge Omar J. Aboulhosn: 292 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to Stay re: 286 Order (ts) (Entered: 07/30/2020)

07/30/2020

294 ORDER granting Defendants' 292 MOTION to Stay Magistrate's Order; the 7/27/2020 286 Order is STAYED pending Defendants' filing of any objections for the District Court's consideration through 8/10/2020; in the event Defendants file objections, the stay will continue pending a decision by the District Court. Signed by Magistrate Judge Omar J. Aboulhosn on 7/30/2020. (cc: counsel of record) (jsa)

08/03/2020

295 NOTICE of Withdraw of Footnote 18 from Plaintiff's 279 Memorandum in Support of Plaintiff's Motion for Class Certification by Amber Arnett, John Baxley, Jr, Earl Edmondson, Joshua Hall (Milnes, Lydia)

08/03/2020 296 NOTICE of Production of Documents Pursuant to Subpoena by PrimeCare Medical, Inc. re: 285 Order (O'Hare, Anne)

08/03/2020 297 NOTICE of Production of Documents Pursuant to Subpoena by PrimeCare Medical, Inc. re: 285 Order (O'Hare, Anne)

08/04/2020

298 CERTIFICATE OF SERVICE by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Fifth Supplemental Answers to Plaintiffs' Third Set of Requests for Production of Documents. (Arceneaux, Webster)

08/07/2020

299 MOTION by John Baxley, Jr, Ear Edmondson, Joshua Hall, Donna Wells-Wright, Heather Reed, Danny Spiker, Jr. to File Exhibits T, W, AA, EE Under Seal (Attachments: # 1 Exhibit T - Baxley Excerpt from 8-16-2020 intake screening, # 2 Exhibit W - Hall Medical Records, # 3 Exhibit AA - Excerpt from Reed Intake Screening, # 4 Exhibit EE Excerpt from Edmondson Med Records)(Wagner, Jennifer) (Modified on 8/10/2020 to add party filers) (ts)

08/07/2020 300 MOTION by John Baxley, Jr, Danny Spiker, Jr. for Leave to File Memoranda in Opposition in Excess of Page Limit (Wagner, Jennifer) (Modified on 8/10/2020 to add party filer) (ts).

08/07/2020

301 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to Strike Exhibit 10 to 264 Motion for Class Certification (Attachment: # 1 Exhibit 1)(Arceneaux, Webster) Modified on 8/10/2020 to add link to #264 motion) (ts). M

08/07/2020

302 RESPONSE by John Baxley, Jr in opposition to 263 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to John Baxley, Jr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C-1, # 4 Exhibit C-2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit X, # 24 Exhibit Y, # 25 Exhibit Z, # 26 Exhibit BB, # 27 Exhibit CC, # 28 Exhibit DD, # 29 Exhibit FF, # 30 Exhibit GG, # 31 Exhibit HH, # 32 Exhibit II, # 33 Exhibit JJ, # 34 Exhibit KK, # 35 Exhibit LL)(Kincaid, Rachel)

08/07/2020 303 RESPONSE by Danny Spiker, Jr in opposition to 271 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Danny Spiker (Wagner, Jennifer)

08/07/2020 304 RESPONSE by Heather Reed in opposition to 267 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Heather Reed (Kincaid, Rachel)

08/07/2020 305 RESPONSE by Earl Edmondson in opposition to 269 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Earl Edmondson (Kincaid, Rachel)

08/07/2020

306 RESPONSEby Donna Wells-Wright in opposition to 273 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Donna Wells-Wright (Wagner, Jennifer)

08/07/2020

307 RESPONSE by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in opposition to 264 MOTION by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr., Donna Wells-Wright to Certify Class (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5-1, # 6 Exhibit 5-2, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11)(Arceneaux, Webster)

08/07/2020

308 RESPONSE by Joshua Hall in opposition to 277 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Joshua Hall (Wagner, Jennifer)

08/07/2020

309 MOTION by Amber Arnett, Eric L. Jones to Hold 260 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Amber Arnett and Eric L. Jones in Temporary Abeyance (Wagner, Jennifer)

08/10/2020 310 MOTION by Lydia C. Milnes to Withdraw as Attorney on behalf of Eric L. Jones (Milnes, Lydia)

08/10/2020 311 MOTION by Lydia C. Milnes to Withdraw as Attorney on behalf of Amber Arnett (Milnes, Lydia)

08/10/2020

312 ORDER granting Plaintiffs' 299 MOTION for Leave to File Exhibit Under Seal; granting Plaintiffs' 300 MOTION for Leave to File Memorandum in Opposition to Defendant's Motions for Summary Judgment Against Them in Excess of Page Limit, but limits any filing to forty pages. Signed by Judge Robert C. Chambers on 8/10/2020. (cc: counsel of record; any unrepresented parties) (hkl)

08/10/2020

313 SEALED CONFIDENTIAL MEDICAL RECORDS pursuant to 312 Court Order. (Attachments: Main Document: Exhibit T, # 1 Exhibit W, # 2 Exhibit AA, # 3 Exhibit EE) (hkl)

08/10/2020

314 OBJECTIONS by West Virginia Division of Corrections and Rehabilitation, Betsy Jividen to 286 Order. (Arceneaux, Webster) (Modified on 8/11/2020 to add link to #286 order, to add party filer and to convert event to response to court order) (kew).

08/11/2020

315 RESPONSE by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation re: 309 MOTION by Amber Arnett, Eric L. Jones to Hold 260 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Amber Arnett and Eric L. Jones in Temporary Abeyance (Arceneaux, Webster)

08/12/2020

316 ORDER granting 310 MOTION by Lydia C. Milnes to Withdraw as Attorney on behalf of Eric L. Jones and 311 MOTION by Lydia C. Milnes to Withdraw as Attorney on behalf of Amber Arnett; granting 309 MOTION by Amber Arnett, Eric L. Jones to hold 260 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Amber Arnett and Eric L. Jones in Temporary Abeyance and will hold the Motion for Summary Judgment directed at Jones and Arnett in abeyance for thirty days. Signed by Judge Robert C. Chambers on 8/12/2020. (cc: attys; any unrepresented parties) (mkw)

08/14/2020

317 CERTIFICATE OF SERVICE by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Sixth Supplemental Responses to Plaintiffs' Third Set of Requests for Production of Documents. (Arceneaux, Webster)

08/14/2020

318 MOTION by John Baxley, Jr to Strike Affidavit of Dr. Lawrence J. Mendel re: 307 Response in Opposition (Attachment: # 1 Exhibit Dr. Lawrence Mendel Deposition transcript)(Wagner, Jennifer) (Modified on 8/17/2020 to add link to #307 response in opposition) (ts).

08/14/2020

319 MOTION by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Donna Wells-Wright for Leave to File Reply Memorandum in Support of Their Motion for Class Certification in Excess of Page Limit (Milnes, Lydia)

08/14/2020

320 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Leave to File Reply Memorandum in Opposition to Response of John Baxley, Jr. in Excess of Page Limit (Attachment: # 1 Proposed Order)(Arceneaux, Webster)

08/14/2020

321 REPLY MEMORANDUM by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 302 Response In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Arceneaux, Webster)

08/14/2020 322 REPLY BRIEF by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 308 Memorandum In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Arceneaux, Webster)

08/14/2020

323 REPLY by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Donna Wells-Wright to 307 Response In Opposition. (Wagner, Jennifer) (Modified on 8/17/2020 to remove link to #264 motion, #279 memorandum in support) (ts).

08/14/2020

324 REPLY BRIEF by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 306 Memorandum In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Arceneaux, Webster)

08/14/2020 325 REPLY BRIEF by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 305 Response In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Arceneaux, Webster)

08/14/2020 326 REPLY BRIEF by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 303 Response In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Arceneaux, Webster)

08/14/2020

327 REPLY BRIEF by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 304 Response In Opposition. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Arceneaux, Webster)

08/18/2020 328 SUPPLEMENTAL MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Donna Wells-Wright (Attachment: # 1 Exhibit 1)(Arceneaux, Webster)

08/18/2020

329 MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in support of 328 SUPPLEMENTAL MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment (Arceneaux, Webster)

08/21/2020

330 RESPONSE by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation in opposition to 318 MOTION by John Baxley, Jr to Strike Affidavit of Dr. Lawrence J. Mendel re: 307 Response in Opposition (Stebbins, James)

08/21/2020

331 RESPONSE by John Baxley, Jr in opposition to 301 MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to Strike Exhibit 10 to 264 Motion for Class Certification (Milnes, Lydia)

08/24/2020 332 ORDER granting Plaintiffs' 319 MOTION for Leave to File Reply Memorandum in Support of Their 264 MOTION for Class Certification in Excess of Page Limit; Plaintiffs' Memorandum is limited to twenty-

five pages. Signed by Judge Robert C. Chambers on 8/24/2020. (cc: counsel of record; any unrepresented parties) (jsa)

08/24/2020

333 ORDER granting Defendants' 320 MOTION for Leave to File Reply Memorandum in Opposition to 302 Response of John Baxley, Jr. in Excess of Page Limit; Defendants' Memorandum is limited to twentynine pages. Signed by Judge Robert C. Chambers on 8/24/2020. (cc: counsel of record; any unrepresented parties) (jsa)

08/24/2020

334 RESPONSE by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Donna Wells-Wright in opposition to 314 Objections to Order (Wagner, Jennifer)

08/27/2020 335 REPLY by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 331 Response In Opposition. (Arceneaux, Webster)

08/28/2020 336 MOTION by John Baxley, Jr for Leave to File Surreply (Wagner, Jennifer)

08/28/2020 337 REPLY by John Baxley, Jr, Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr, Donna Wells-Wright to 330 Response In Opposition. (Milnes, Lydia)

08/31/2020 338 REPLY by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 334 Response In Opposition. (Arceneaux, Webster)

09/08/2020

339 RESPONSE by Donna Wells-Wright in opposition to 328 SUPPLEMENTAL MOTION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Summary Judgment as to Donna Wells-Wright (Wagner, Jennifer)

09/09/2020

340 CERTIFICATE OF SERVICE by John Baxley, Jr for Eighth Supplemental Responses to Defendant Shelby Searls First Set of Requests for Production of Documents. (Milnes, Lydia)

09/11/2020

341 ORDER staying consideration of Plaintiffs' 336 MOTION for Leave to File Surreply until review of the filed pleadings has been completed. Signed by Judge Robert C. Chambers on 9/11/2020. (cc: counsel of record; any unrepresented parties) (jsa)

09/15/2020 342 REPLY MEMORANDUM OF LAW by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation to 339 Response In Opposition. (Arceneaux, Webster)

09/17/2020

343 ORDER denying as moot Plaintiffs' 88 MOTION for Class Certification. Signed by Judge Robert C. Chambers on 9/17/2020. (cc: counsel of record; any unrepresented parties) (jsa)

09/22/2020

344 ORDER denying as moot Defendants' 95 RENEWED MOTION to Dismiss, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Stout. Signed by Judge Robert C. Chambers on 9/22/2020. (cc: counsel of record; any unrepresented parties) (jsa)

09/22/2020

345 ORDER denying as moot Defendants' 91 RENEWED MOTION to Dismiss, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Baxley and Defendants' 93 RENEWED MOTION to Dismiss, or in the Alternative, Motion for Summary Judgment Regarding Plaintiff Eric Jones. Signed by Judge Robert C. Chambers on 9/22/2020. (cc: counsel of record; any unrepresented parties) (jsa)

09/24/2020

346 ORDER directing that if Plaintiff Arnett chooses to file a Response in opposition to Defendants' 260 MOTION for Summary Judgment as to Amber Arnett and Eric L. Jones, the same shall be filed with the Clerk of this Court on or before 10/1/2020; Defendants will have seven days within which to reply following service of the Response, if such is filed. Signed by Judge Robert C. Chambers on 9/24/2020. (cc: counsel of record; any unrepresented parties) (hkl)

09/24/2020

347 ORDER directing that if Plaintiff Jones chooses to file a Response in opposition to Defendants' 260 MOTION for Summary Judgment as to Amber Arnett and Eric L. Jones, the same shall be filed with the Clerk of this Court on or before 10/1/2020; Defendants will have seven days within which to reply following service of the Response, if such is filed. Signed by Judge Robert C. Chambers on 9/24/2020. (cc: counsel of record; any unrepresented parties) (hkl)

10/06/2020

349 ORDER overruling Defendants' 314 Objections to the Magistrate Judge's 7/27/2020 286 Order, finding that Magistrate Judge Aboulhosn's findings are correct and are not clearly erroneous or contrary to law. Signed by Judge Robert C. Chambers on 10/6/2020. (cc: counsel of record; any unrepresented parties) (jsa)

10/07/2020

350 ORDER directing that Defendants are to fully and meaningfully respond to Plaintiffs' discovery requests as outlined in the 286 Order no later than 10/16/2020; directing that Plaintiffs' pleading on attorneys' fees and costs shall be filed within 14 days; A response by the Defendants shall be filed within 7 days after the Plaintiffs' pleading; The Plaintiffs may file a reply within 3 days after the Defendants' response. Signed by Magistrate Judge Omar J. Aboulhosn on 10/7/2020. (cc: counsel of record) (hkl)

10/16/2020

351 CERTIFICATE OF SERVICE by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation for Defendants' Seventh Supplemental Answers and Responses to Plaintiffs' Third Set of Interrogatories and Requests for Documents. (Arceneaux, Webster)

10/29/2020 352 ORDER denying as moot Defendants' 275 MOTION for Summary Judgment as to Robert Watson. Signed by Judge Robert C. Chambers on 10/29/2020. (cc: counsel of record; any unrepresented parties) (hkl)

10/29/2020

353 MEMORANDUM OPINION AND ORDER finding that Plaintiffs Amber Arnett and Eric L. Jones have failed to prosecute their case; dismissing with prejudice Plaintiffs Arnett and Jones's claims from this action; denying as moot Defendants' 260 MOTION for Summary Judgment as to Amber Arnett and Eric L. Jones. Signed by Judge Robert C. Chambers on 10/29/2020. (cc: counsel of record; any unrepresented parties) (hkl)

10/30/2020

354 STIPULATION REGARDING FEES & COSTS TO DATE ON DISCOVERY MOTIONS by John Baxley, Jr., West Virginia Divisions of Corrections and Rehabilitation, Donna Wells-Wright, Danny Spiker, Jr., Heather Reed, PrimeCare Medical, Inc., Betsy Jividen, Joshua Hall, Earl Edmondson; the parties stipulate that they have resolved all matters regarding Plaintiffs' attorney fees and costs accrued in pursuing the 131 and 238 motions to compel. (Wagner, Jennifer) (Modified on 10/30/2020 to add party filers) (mkw).

12/02/2020

355 MEMORANDUM OPINION AND ORDER denying Defendant's 301 MOTION to Strike Exhibit 10 to Plaintiffs' 264 MOTION for Class Certification. Signed by Judge Robert C. Chambers on 12/2/2020. (cc: counsel of record; any unrepresented parties) (jsa)

12/02/2020

356 MEMORANDUM OPINION AND ORDER denying Plaintiffs' 318 MOTION to Strike Affidavit of Dr. Lawrence H. Mendel, submitted by the Defendant as an exhibit to her 307 Response in Opposition to Plaintiffs' 264 Motion for Class Certification. Signed by Judge Robert C. Chambers on 12/2/2020. (cc: counsel of record; any unrepresented parties) (jsa)

12/21/2020

357 MEMORANDUM OPINION AND ORDER granting in part Plaintiffs' 264 MOTION for Class Certification; the Plaintiffs' "Jail Class" is now certified and may proceed as a class action; withholding judgment regarding the certification of Plaintiffs' Disability Subclass; directing the parties to provide the Court with memoranda regarding the suitability of certification for that class; Plaintiffs' supplemental memorandum is due by 1/11/2021; after Plaintiffs submit their memorandum, Defendant will have fourteen (14) days to file a response; further directing the parties to meet to address the completion of discovery and propose a new scheduling order; the parties' Rule 26(f) report is due by 1/11/2021; scheduling a scheduling/status conference on 1/19/2021 at 11:30 AM in Huntington. Signed by Judge Robert C.

Chambers on 12/21/2020. (cc: counsel of record; any unrepresented parties) (jsa)

12/21/2020

358 MEMORANDUM OPINION AND ORDER denying in part and granting in part Defendants' 263 , 267 , 269 , 271 , and 277 MOTIONS for Summary Judgment; the Motions are denied to the extent that the Court finds the Named Plaintiffs' claims are not moot; the Plaintiffs did not fail to exhaust their administrative remedies; and the Plaintiffs have not failed to state a claim of deliberate indifference in Count I of the 67 Second Amended Complaint; the Motions are granted to the extent that Plaintiffs Baxley, Spiker, Reed, Edmondson, and Hall have failed to state a claim under the ADA; accordingly, their claims in Count II are dismissed; further denying Defendant's 273 MOTION and 328 SUPPLEMENTAL MOTION for Summary Judgment as to Donna Wells-Wright; Plaintiffs' 336 MOTION for Leave to File a Surreply is denied as moot; pursuant to Plaintiffs' voluntary dismissal, WVDCR is dismissed as a party to this action. Signed by Judge Robert C. Chambers on 12/21/2020. (cc: counsel of record; any unrepresented parties) (jsa)

01/05/2021 359 MOTION by Betsy Jividen for Stay Pending 362 Appeal of Certification Order. (Attachment: # 1 Exhibit 1)(Arceneaux, Webster) (Modified on 1/5/2021 to add link to #362 appeal) (mkw).

01/05/2021 360 MEMORANDUM OF LAW by Betsy Jividen in support of 359 MOTION by Betsy Jividen to Stay Pending Appeal of Certification Order. (Arceneaux, Webster)

01/05/2021

361 NOTICE OF APPELLATE CASE OPENING BY 4CCA re: 362 Petition for Permission to Appeal filed with the Fourth Circuit in 4CCA Case No. 21-102. Case Manager: Cyndi Halupa. (hkl) (Modified on 1/5/2021 to add link to #362 petition for permission to appeal) (mkw).

01/05/2021

362 PETITION FOR PERMISSION TO APPEAL FROM ORDER GRANTING CLASS CERTIFICATION by Betsy Jividen, West Virginia Division of Corrections and Rehabilitation as to 357 Memorandum Opinion and Order. (hkl)

01/05/2021 363 RULE 5 DOCKETING NOTICE in 4CCA No. 21-102. (hkl)

01/05/2021 364 TRANSMITTAL OF NOTICE OF APPEAL TO 4CCA via APPEAL TRANSMITTAL SHEET re: 362 Petition for Permission to Appeal from Order Granting Class Certification. (hkl)

01/07/2021 365 ORDER regarding the 359 MOTION by Betsy Jividen to Stay Pending 362 Appeal of Certification Order; directing the Plaintiffs to

file a responsive memorandum by 1/11/2021 and the Defendant to file a reply by 1/12/2021. Signed by Judge Robert C. Chambers on 1/7/2021. (cc: counsel of record; any unrepresented parties) (jsa)

01/08/2021

366 JOINT MOTION by John Baxley, Jr., Joshua Hall, Earl Edmonson, Donna Wells-Wright, Heather Reed, Danny Spiker, Jr., Betsy Jividen for a Stay of the Case Not to Exceed Sixty Days. (Arceneaux, Webster) (Modified on 1/11/2021 to add party filers) (mkw).

01/11/2021

367 ORDER granting the parties' 366 JOINT MOTION for a Stay of the Case Not to Exceed Sixty Days; directing this matter stayed until after the Parties attend mediation; the stay shall not exceed sixty days (3/12/2021); directing the Parties to submit a report to the Court within three days of mediation updating the Court on the status of the case; this stay does not apply to Defendant's interlocutory appeal of certification; further denying as moot Defendant's previous 359 MOTION to Stay Pending Appeal of Certification Order; canceling the scheduling/status conference scheduled for 1/19/2021. Signed by Judge Robert C. Chambers on 1/11/2021. (cc: counsel of record; any unrepresented parties) (jsa)

01/13/2021 368 NOTICE of Mediation by Betsy Jividen. (Arceneaux, Webster)

01/29/2021

369 ORDER OF 4CCA as to 362 Petition for Permission to Appeal to 4CCA in 4CCA Case No. 21-102; upon review of submissions relative to the petition for permission to appeal, the court denies the petition. (jsa)

02/09/2021 370 NOTICE of Change of Address by John Baxley, Jr. (Milnes, Lydia)

02/10/2021 371 NOTICE OF CHANGE OF ATTORNEY INFORMATION by Jennifer S. Wagner. (Wagner, Jennifer)

02/10/2021 372 NOTICE OF CHANGE OF ATTORNEY INFORMATION by Lydia C. Milnes. (Milnes, Lydia)

02/17/2021

373 MOTION by John Baxley, Jr., Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr., Donna Wells-Wright to Compel Person with Full Authority to Attend Mediation. (Wagner, Jennifer)

02/19/2021

374 ORDER directing the Defendant to file a response to Plaintiffs' 373 MOTION to Compel a Person with Authority to Resolve Case on Behalf of Defendant to Attend Mediation by noon on 2/24/2021; directing Plaintiffs to file a reply by noon on 2/26/2021. Signed by Judge Robert C. Chambers on 2/19/2021. (cc: counsel of record; any unrepresented parties) (hkl)

02/19/2021

375 JOINT REPORT REGARDING CASE STATUS by John Baxley, Jr., Earl Edmondson, Joshua Hall, Donna Wells-Wright, Heather Reed, Danny Spiker, Jr., Betsy Jividen to the Court's 367 Order. (Attachment: # 1 Exhibit 1)(Arceneaux, Webster) (Modified on 2/22/2021 to add party filers and to add link to #367 order) (mkw).

02/22/2021 376 REPORT OF MEDIATOR by G. Nicholas Casey, Jr. (jsa)

02/24/2021

377 RESPONSE by Betsy Jividen in opposition to 373 MOTION by John Baxley, Jr., Earl Edmondson, Joshua Hall, Heather Reed, Danny Spiker, Jr., Donna Wells-Wright to Compel Person with Full Authority to Attend Mediation. (Arceneaux, Webster)

02/26/2021 378 REPLY by John Baxley, Jr. to 377 Response In Opposition. (Attachment: # 1 Exhibit A)(Wagner, Jennifer)

02/26/2021

379 ORDER scheduling a Telephonic Conference for 3/1/2021 at 2:30 PM before Judge Robert C. Chambers, re: Plaintiffs' 373 MOTION to Compel Person with Full Authority to Attend Mediation, Defendant Jividen's 377 Response In Opposition, and Plaintiffs' 378 Reply. Signed by Judge Robert C. Chambers on 2/26/2021. (cc: counsel of record; any unrepresented parties) (hkl)

03/01/2021 380 TELEPHONIC CONFERENCE held by Judge Robert C. Chambers on 3/1/2021; Court Reporter: not reported. (trj) (Entered: 03/02/2021)

03/02/2021

381 ORDER directing that the discussed Request for Proposal (RFP) be provided to Plaintiffs' Counsel 72 hours before it is released to the public; The RFP shall be provided to Plaintiffs' Counsel subject to the 56 Protective Order entered by Magistrate Judge Eifert on 11/19/2019. Signed by Judge Robert C. Chambers on 3/2/2021. (cc: counsel of record; any unrepresented parties) (hkl)

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 Case 3:18-cv-01526 Document 1 Filed 12/18/18 Page 1 of 2 PageID #: 1
3:18-cv-01526 Baxley v. Western Regional Jail

Case 3:18-cv-01526 Document 1 Filed 12/18/18 Page 2 of 2 PageID #: 2

 
 Case 3:18-cv-01526 Document 18 Filed 04/25/19 Page 1 of 26 PageID #: 111

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., ERIC L. JONES, and SAMUEL STOUT, on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

Civ. Act. No. 3:18cv01526

(Chambers, J.)

BETSY JIVIDEN, in her official capacity as Commissioner of the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and JOSEPH WOOD, in his official capacity as the Superintendent of WESTERN REGIONAL JAIL AND CORRECTIONAL FACILITY,

Defendants.

FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1. This is an action on behalf of inmates housed in jail facilities throughout West

Virginia, which are administered by the West Virginia Division of Corrections and Rehabilitation.

Specifically, plaintiffs seek to ensure that jails in West Virginia promptly provide appropriate and

necessary medical and mental health treatment to inmates upon admission, as required under the

Eighth and Fourteenth Amendments of the United States Constitution, and the Americans with

Disabilities Act. In addition, the named plaintiffs, who are all housed at Western Regional Jail and

Correctional Facility (“Western Regional”) in Barboursville, West Virginia, bring this action on

behalf of inmates housed at Western Regional stemming from the Defendants’ violation of the

Eighth and Fourteenth Amendments to the United States Constitution for deliberate indifference

to plaintiffs’ health and safety as a result of the conditions of confinement in that facility.

2. Plaintiffs bring this suit seeking solely declaratory and injunctive relief.

Case 3:18-cv-01526 Document 18 Filed 04/25/19 Page 2 of 26 PageID #: 112
I. JURISDICTION 3. This action arises under the Civil Rights Act, 42 U.S.C. § 1983, and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12133. 4. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. § 1343(a) (3)-(4) and 28 U.S.C. § 1331. 5. Declaratory and injunctive relief are authorized pursuant to 28 U.S.C. §§ 2201 and 2202, and Federal Rules of Civil Procedure 57 and 65. 6. Venue is proper because a substantial part of the acts and omissions of which Plaintiffs complain occurred in this District. See 28 U.S.C. § 1391(b).
II. PARTIES 1. Defendant Betsy Jividen is the Commissioner of the West Virginia Division of Corrections and Rehabilitation (“WVDOCR”). The WVDOCR is the administrative division of the West Virginia Department of Military Affairs and Public Safety tasked with administering and exercising direct and effective control over prisons and jails in West Virginia. WVDOCR operates nineteen jail facilities throughout West Virginia, including Western Regional. As a government agency, WVDOCR is a “public entity” as defined by 42 U.S.C. § 12131(1) of Title II of the ADA. 2. As Commissioner of the WVDOCR, Defendant Jividen is vested with executive authority and responsibility for the administration, operation, and control of all WVDOCR facilities and employees of WVDOCR facilities. Defendant Jividen’s duties include establishing, monitoring, and enforcing policy directives and procedures that ensure constitutional confinement and treatment of all people in the custody of the WVDOCR. Among other things, Commissioner Jividen is charged with ensuring that inmates receive appropriate medical and mental health treatment upon admission to and while housed in any West Virginia jail. Commissioner Jividen

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is similarly charged with maintaining and operating the jail facilities in West Virginia in a manner that meets the minimal civilized measure of life’s necessities, by providing beds and bedding for all inmates, access to basic hygiene products and laundry, and providing living conditions free of mold, human waste, and other contaminants for all inmates housed therein.
3. At all relevant times, Defendant Jividen was acting under the color of state law. Defendant Jividen is named solely in her official capacity for the purposes of seeking declaratory and prospective injunctive relief.
4. Defendant Joe Wood is the Superintendent of Western Regional Jail and Correctional Facility, in Barboursville, West Virginia. In that capacity, Defendant Wood is tasked by law with the care and custody of all detainees and prisoners incarcerated at Western Regional. Defendant Wood is vested with executive authority and responsibility for the safe staffing, administration, operation, and control of Western Regional, including the oversight of all Western Regional employees, and the authority to promulgate, amend, and implement all policies and procedures within Western Regional to ensure constitutional confinement and treatment of individuals incarcerated within. Among other things, Defendant Wood is charged with ensuring that inmates at Western Regional Jail receive appropriate medical and mental health treatment upon admission. Defendant Wood is similarly charged with maintaining and operating Western Regional in a manner that meets the minimal civilized measure of life’s necessities, by providing beds and bedding for all inmates, affording access to basic hygiene products and laundry, and providing living conditions that are free of mold, human waste, and other contaminants.
5. At all relevant times, Defendant Wood was acting under the color of state law. Defendant Wood is named solely in his official capacity for the purposes of seeking declaratory and prospective injunctive relief.

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6. Plaintiff John Baxley, Jr. is a pretrial detainee housed at Western Regional Jail. At all relevant times, plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
7. Plaintiff Eric L. Jones is a prisoner housed at Western Regional Jail as a result of a parole revocation. At all relevant times, plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
8. Plaintiff Samuel Stout is a pretrial detainee housed at Western Regional Jail. 9. Plaintiffs bring this action on their own behalf and on behalf of all others similarly situated, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2).
III. STATEMENT OF FACTS A. Class A and Subclass
1. Failure to provide Medical and Mental Health Treatment to Inmates upon Admission
10. Pursuant to West Virginia Code of State Rules § 95-1-14.1, entitled Right to medical care, “[a]ll inmates shall have prompt access to necessary medical, dental, and psychiatric care, provided in a reasonable manner by licensed personnel.”
11. Upon information and belief, Defendants lack an adequate policy and/or routinely fail to implement adequate practices to ensure prompt treatment of inmates who have serious medical and/or mental health needs upon admission to jail. Failure to Provide Adequate Mental Health Treatment
12. Plaintiff Baxley has multiple preexisting mental illness diagnoses. Among other things, upon information and belief, he has been diagnosed with depression, anxiety, bi-polar disorder, and schizophrenia.

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13. Prior to admission to Western Regional, Mr. Baxley was prescribed Seroquel, Klonopin, and Trazodone to treat his mental illnesses.
14. Upon his arrest and admission to Western Regional, Mr. Baxley’s wife called the facility seeking to bring his medications, but her request was denied.
15. Upon information and belief, despite being informed of his serious mental health diagnoses, Defendants took no steps to quickly reinstate Mr. Baxley’s medications, such as contacting his treating physician in the community to obtain his prescriptions; moreover, Defendants did not have a psychiatrist or other trained mental health professional on call who could evaluate Mr. Baxley and determine an appropriate course of treatment.
16. Instead, Mr. Baxley was given no medications and was placed on suicide watch. Upon information and belief, Mr. Baxley was placed on suicide watch in recognition that abruptly stopping antidepressant and antipsychotic medications is known to cause serious withdrawal symptoms, including suicidal thoughts and behaviors.
17. Suicide watch is an extremely restrictive setting. When a pretrial detainee such as Mr. Baxley is placed on suicide watch, s/he is stripped of all clothing and instead given a blue paper smock to wear; s/he is not permitted to have any bedding or other personal affects.
18. In Mr. Baxley’s case, he was housed in a cell with seven inmates, who upon information and belief were also on suicide watch, many because they were detoxing from street drugs without any medical assistance; there were not enough beds for all the inmates, and many, including Mr. Baxley, had to sleep on the floor.
19. Mr. Baxley went without any antipsychotic medications for at least three days. During this period he did, in fact, become suicidal and entered a psychotic state, in which he had auditory and visual hallucinations.

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20. He additionally suffered physical side effects from stopping the medications including hot and cold flashes, sweats, nausea, inability to sleep, and loss of appetite.
21. After approximately three to four days, Mr. Baxley began receiving some antidepressant and antipsychotic drugs, but not the same drugs nor at the same dosages that he had been prescribed prior to admission.
22. After approximately four more days on suicide watch, Mr. Baxley was moved to another unit at Western Regional; his medications, however, did not follow.
23. Mr. Baxley repeatedly asked for his medications and medical treatment, but his requests were ignored.
24. After going another three to four days without any medications, Mr. Baxley entered a psychotic state; upon information and belief, a nurse discovered him pacing and talking to himself in his cell.
25. Officers were summoned to remove him from the cell, but Mr. Baxley responded to them in a violent manner because he was in a psychotic state at the time and believed they were trying to hurt him.
26. In order to subdue Mr. Baxley, officers sprayed him with chemical agents; Mr. Baxley’s head and chin were injured during the incident.
27. Following this incident, Mr. Baxley was returned to suicide watch for another four days.
28. In or around the winter of 2018 to 2019, Mr. Baxley was transferred to a WVDOCR prison facility for a short period.
29. While at the prison, Mr. Baxley was provided necessary medications.

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30. Mr. Baxley was then transferred back to Western Regional; the prison transferred him back with a packet of information regarding Mr. Baxley’s diagnoses and prescriptions, and a ten day supply of his medications.
31. Upon information and belief, ten days is more than enough time for Defendants to ensure that Mr. Baxley continue his antipsychotic medications without break.
32. Nevertheless, Defendants failed to obtain the necessary medication, and thus, after the ten day supply ran out, Mr. Baxley went approximately seven days with no antipsychotic medications.
33. Once again, going without his medications caused Mr. Baxley to become paranoid and delusional, and resulted in an altercation with a fellow inmate. Failure to Provide Adequate Medical Treatment
Mr. Baxley 34. In addition to his mental health diagnoses, Mr. Baxley has a seizure disorder and severe asthma. 35. Prior to admission to Western Regional, Mr. Baxley was prescribed Depakote to treat his seizure disorder, and two asthma inhalers to address his severe asthma problems. 36. As with his anti-psychotic medications, Mr. Baxley’s wife offered to bring his Depakote and inhalers for his use upon admission, but was not permitted. 37. Upon information and belief, despite being informed of his serious medical conditions, Defendants took no steps to quickly reinstate Mr. Baxley’s medications, such as contacting his treating physician in the community to obtain his prescriptions; moreover, Defendants did not have a medical doctor or other trained medical provider available on site or on

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call who could evaluate Mr. Baxley and determine an appropriate course of treatment for his medical conditions.
38. Indeed, upon admission to Western Regional, Mr. Baxley was not prescribed any anti-seizure medication, nor was he provided with inhalers for his asthma.
39. After a period of several days, Defendants prescribed an alternative to Depakote to treat Mr. Baxley’s seizures.
40. Taking the alternative drug caused Mr. Baxley to have trouble breathing, such that he could not safely continue use of the alternative seizure mediation. No other seizure medication has been provided.
41. Mr. Baxley does not know whether he has suffered seizures due to not taking a seizure medication, because when Mr. Baxley has a seizure, he does not remember it afterwards.
42. Mr. Baxley was ultimately prescribed an allergy medication for his asthma, but has never been provided with an inhaler, and continues to suffer from asthma.
Mr. Jones 43. Mr. Jones similarly arrived at Western Regional with a preexisting medical condition. 44. Mr. Jones has high blood pressure and, prior to being admitted to Western Regional, took daily blood pressure medication to control his disease; without daily treatment, high blood pressure can cause heart attacks, strokes, and aneurisms, among other things. 45. Upon admission, Mr. Jones informed employees of the Defendants of his medical condition and asked to be given blood pressure medication. 46. Mr. Jones further explained that he had, until several days before, been incarcerated at Huttonsville Correctional Center, a WVDOCR facility.

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47. Upon information and belief, despite another WVDOCR facility having Mr. Jones’s medical files, including his diagnosis of high blood pressure and prescription for medication, Defendants took no steps to obtain those records and provide Mr. Jones with his medication.
48. Indeed, Mr. Jones went approximately two weeks without receiving any blood pressure medication.
49. This denial of medication caused Mr. Jones significant anxiety, because he understood that failure to control his blood pressure could result in life-threatening consequences, including heart attacks, strokes, and aneurisms.
Class Member R.H. 50. Class member R.H. is an HIV positive inmate. R.H. was admitted to Western Regional in or around the summer of 2017, at which time he informed Defendants of his status as being HIV positive and the anti-retroviral medications which he was taking prior to admission. 51. Upon information and belief, despite having numerous inmates who are HIV positive, Defendants had no policy or procedure to ensure that R.H. could continue on his antiretroviral medications without disruption. Defendants took no steps to quickly reinstate R.H.’s medications, such as contacting his treating physician in the community to obtain his prescriptions. 52. R.H. did not receive any medications to treat his HIV for approximately one week; at that point, he began receiving one of the drugs that is part of his antiretroviral regimen but not the others. 53. Upon information and belief, this practice is dangerous and contraindicated, as taking one drug in an antiretroviral regimen without the others can lead to drug resistant virus mutations.

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54. It took Defendants approximately one month to provide R.H. with the full set of antiretroviral drugs that he was supposed to be taking.
55. Thereafter, R.H. would receive his needed medications for approximately a month at a time, but when that prescription would run out, he consistently went about a week without medications before he would begin to receive them again.
2. Class A and Subclass Allegations 56. Class A includes all persons who were at any time on or after December 18, 2018,1 or who will be, admitted to a jail in West Virginia with discernable, treatable medical problems. 57. There are questions of law or fact common to Class A. 58. Common questions of fact for the members of Class A include whether a policy or procedure exists to ensure that class members promptly receive appropriate medical and/or mental health treatment when they enter the jails in West Virginia, and whether inmates in fact do promptly receive such treatment. 59. Common questions of law applicable to Class A include whether Defendants have acted with deliberate indifference to serious medical needs of inmates at the time of admission to jails in West Virginia. 60. A subclass of Class A includes all individuals who were at any time on or after December 18, 2018, inmates admitted to a jail in West Virginia who meet the definition of being a “qualified individual with a disability” under the ADA. 61. There are questions of law or fact common to the subclass. 62. Common questions of fact for the subclass, i.e. inmates who are qualified
1The class timeframe relates back to the original date of filing of Plaintiffs Baxley’s and Stout’s pro se complaints, which were filed as a result of said Plaintiffs’ failed attempt to file a class action by filing a complaint jointly with approximately twenty other inmates.

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individuals with a disability under the ADA, include whether such inmates receive the necessary accommodations for their disabilities to enable them to participate in jail life in the same manner as non-disabled inmates.
63. Common questions of law applicable to the subclass, i.e. inmates with qualifying disabilities under the ADA, include whether Defendants have engaged in discrimination by failing to provide said inmates with reasonable accommodations to enable them to live with the same measure of health and safety as inmates without disabilities who are confined to jails in West Virginia.
64. The class and subclass are so numerous that joinder of all members is impracticable. 65. Class members of Class A and its subclass are geographically dispersed throughout the length and breadth of the state, and membership is fluid as individual inmates are admitted to and released or transferred from the jails. 66. The claims of Plaintiffs Baxley and Jones are typical of the claims of Class A as a whole, and the subclass. They have been subjected to and suffered injury as the result of the same policies, or lack thereof, and practices in the various facilities as the absent class and subclass members. 67. The named plaintiffs will fairly and adequately represent and advance the interests of the class and subclasses. By filing this action, the named plaintiffs have displayed a strong interest in vindicating the rights of all who have been similarly harmed by WVDOCR’s arbitrary and harmful actions. By seeking to remedy the violations of their constitutional rights, the named plaintiffs will also be advancing and proving the claims and rights of absent class members. 68. There are no antagonistic interests between plaintiffs and the absent members of the class, and the equitable relief sought by the named plaintiffs will benefit the class generally.

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69. The named plaintiffs are represented by Mountain State Justice, Inc., a non-profit, public interest legal services firm with long and substantial expertise in class litigation on behalf of low-income West Virginians. Counsel for the putative class are knowledgeable about the conditions of confinement in correctional facilities, the rights of individuals with disabilities, and are skilled in conducting civil rights litigation in the federal courts, including the prosecution and management of class action litigation.
70. Defendant Jividen has acted or refused to act on grounds generally applicable to the class and subclass, thereby making final equitable relief with respect to the class and subclass as a whole an appropriate remedy. B. Class B
1. Conditions of Confinement at Western Regional Jail 71. Upon information and belief, Western Regional has housed significantly more inmates that it is designed to hold for a number of years. 72. Due to significant overcrowding at numerous regional jails, Governor Jim Justice declared a state of emergency on or about December 31, 2017, permitting the Secretary of the Department of Military Affairs and Public Safety, which includes WVDOCR, to access the West Virginia National Guard to help staff facilities. 73. Multiple news articles have documented the impact of overcrowding at the jail. In August 2018, Defendant Wolfe was quoted in the Herald-Dispatch as stating, in relation to Western Regional, “overcrowding is an issue and understaffing is an issue. Until they take care of that, it’s going to be an issue for anyone that’s there.” Hessler, Courtney, “Wolfe Dismissed as Superintendent at Western Reginal Jail,” The Herald-Dispatch (August 11, 2018). Wolfe further

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explained that “earlier this year, the inmate population was averaging 825 to 850 inmates for a facility designed for about 575.” Id.
74. According to the FY2018 Annual Report for the West Virginia Regional Jail and Correctional Facility Authority,2 Western Regional Jail was designed to hold 394 inmates. Years after the facility was built, an additional 197 bunks and 167 “stackable bunks” were added, providing beds for 758 inmates in the same amount of space. Filthy Living Conditions
75. Pursuant to West Virginia Code of State Rules § 95-1-10.5, “[i]nmates shall be provided sufficient cleaning equipment to maintain their cells in a clean condition.”
76. Section 95-1-10.6 of the Code of State Rules provides that “floors shall be kept clean, dry and free of hazardous substances. Floors shall be inspected regularly throughout the day for cleanliness.”
77. Inmates housed at Western Regional are forced to live in filthy, unsanitary, and dangerous conditions, and are denied cleaning supplies to remedy the conditions.
78. Each plaintiff reports having been housed in cells with mold on the walls, ceilings, window sills, baseboards, among other areas.
79. Both Mr. Baxley and Mr. Stout were housed in cells in which water contaminated with human waste, among other things, would flow into the cell and sit stagnant for days on end.
80. In Mr. Stout’s cell, there were not sufficient beds or bedding structures for all the inmates, and thus inmates were forced to sit, stand, and sleep in the stagnant water.
2 This is the last annual report to be produced by the West Virginia Regional Jail and Correctional Facilities Authority, as this entity was combined in 2018 with the West Virginia Division of Corrections and the West Virginia Division of Juvenile Services to form the WVDOCR. See W. Va. Code § 15a-3-1, et seq.

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81. Despite requesting cleaning supplies, each had to wait two days or more to obtain mops and other cleaning equipment.
82. Mr. Jones was placed in a cell that was filled with trash, and the walls were streaked yellow and black from human waste. Upon information and belief, black mold was growing on the window sills and baseboards.
83. Mr. Jones requested a broom and mop to clean his cell for two days before receiving the necessary cleaning supplies.
84. Mr. Baxley, who is currently double-bunked in a segregation unit, has gone several weeks without receiving cleaning products, and has no opportunity to sweep or mop his cell. Lack of Bedding
85. West Virginia Code of State Rules § 95-1-10.10 requires that “[e]ach inmate shall be provided with one clean, fire retardant mattress, two (2) clean sheets, a clean pillow and clean pillow case. . . . Clean blankets shall be provided in a number appropriate to the season.”
86. All inmates are likewise entitled to a bed above floor level. W.V. C.S.R. §§ 95-18.6.d. and -8.11.b.
87. Inmates at Western Regional Jail are routinely double and triple bunked, meaning that the cells they are housed in do not have enough beds for all the inmates held in the cell.
88. While inmates without a bed are sometimes provided with a mat and/or bedding structure, many are forced to sleep on the concrete floor without any bedding, sometimes for a month or longer.
89. For example, when Mr. Baxley was first admitted to Western Regional in August 2018, he was initially housed in “booking” with six other inmates in a two bed cell. Mr. Baxley was forced to sleep directly on the concrete floor with no bedding of any type.

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90. Similarly, Mr. Jones was housed in a single cell with two other inmates; while Mr. Jones had access to the bed, a concrete slab anchored to the wall of the cell, the two others slept on the floor. One of those inmates was forced to sleep under the concrete slab that formed the sole bed in the cell. This arrangement lasted for approximately three weeks.
91. As previously noted, Mr. Stout has likewise been housed in a cell with two beds and three inmates, one of whom was forced to sleep on the floor with no mat or boat bed.
92. Inmates lucky enough to receive beds and mattresses often do not receive pillows, sheets, or blankets.
93. Mr. Baxley is currently housed with a cellmate in a single bed cell; while his cellmate does have a boat bed, he does not have a sheet, pillow, or blanket. Lack of Access to Hygiene Products
94. West Virginia Code of State Rules § 95-1-10.7 requires that inmates be provided with personal hygiene products upon admission and thereafter as needed. The hygiene products that must be provided include “soap, toothpaste, toilet paper, toothbrushes, combs, and feminine hygiene products.”
95. Inmates throughout Western Regional are routinely not provided adequate access to hygiene products.
96. Mr. Jones has gone without access to hygiene products for up to five days at a time on numerous occasions, including going without access to soap, toothbrush and toothpaste, and toilet paper.
97. In or around April 2019, Mr. Baxley, who is housed in segregation, routinely goes without access to soap (which is used for hand and body soap, as well as shampoo and conditioner) or showers for approximately four days in a row.

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98. Inmates are routinely forced to go multiple days without toilet paper. 99. In or around February 2019, Mr. Baxley had gone four days without toilet paper, despite repeated requests to the Correctional Officers. 100. In or around April 2019, Mr. Jones had gone for two days without toilet paper, despite repeated requests to the Correctional Officers. Lack of Access to Laundry 101. Pursuant to West Virginia Code of State Rules § 95-1-10.13, laundry service is to be provided daily for undergarments and at least every other day for outer garments, or as appropriate. Similarly, laundry service is to be provided for bedding at least weekly. W. Va. C. S. R. § 95-1-10.12. Inmates are to receive clean towels and washcloths at least three (3) times a week. W. Va. C.S.R. § 95-1-10.11. 102. Inmates in Western Regional do not receive appropriate laundry services. 103. Inmates who send garments out to be laundered do not receive them back. 104. Inmates routinely are forced to hand wash their garments in the sinks in their cells without detergent and dry those garments in their cells by hanging them on beds or other structures. 105. For example, when Mr. Jones was admitted to Western Regional, he was not provided with a towel, washcloth, or laundry bag. Mr. Jones had to wash his own clothing in the sink without detergent, and hang the clothes to dry in his cell. 106. Mr. Stout was in Pod A-5 for approximately two months in or around September and October 2018. During that period, he was not able to send any items out to be laundered. 107. Mr. Baxley’s clothing has never been laundered by the facility since he was admitted in August 2018; to date, his only ability to clean his jail garb, as well as his bedding and towel, is to wash them in the sink in his solitary confinement cell.

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2. Class B Allegations 108. Class B includes all persons who were at any time on or after December 18, 2018, inmates housed at Western Regional Jail and Correctional Facility, in Barboursville, West Virginia. 109. Class B is so numerous that joinder of all members is impracticable. 110. Members of Class B are fluid, as individual members are admitted into Western Regional daily, and many members are subsequently released from the jail or transferred to another jail or prison facility. 111. There are questions of law or fact common to the class. 112. Class B common questions of fact include whether inmates at Western Regional have been forced to sleep on the floor without mats and/or other appropriate bedding, and have access to hygiene products, cleaning supplies, and the ability to do laundry, and whether the conditions of the facility violate the minimal standards of decency required to pass constitutional muster. 113. Common questions of law applicable to Class B include whether Defendants acted with deliberate indifference to the health and safety of inmates in administering the conditions of confinement at said facility. 114. The claims of the named plaintiffs are typical of the claims of the class as a whole. They have been subjected to and suffered injury as the result of the same policies and/or lack of policies, and same practices in the various facilities as the absent class and subclass members. 115. The named plaintiffs will fairly and adequately represent and advance the interests of the class and subclasses. By filing this action, the named plaintiffs have displayed a strong interest in vindicating the rights of all who have been similarly harmed by Defendants arbitrary

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and harmful actions. By seeking to remedy the violations of their constitutional rights, the named plaintiffs will also be advancing and proving the claims and rights of absent class members.
116. There are no antagonistic interests between plaintiffs and the absent members of the class, and the equitable relief sought by the named plaintiffs will benefit the class generally.
117. The named plaintiffs are represented by Mountain State Justice, Inc., a non-profit, public interest legal services firm with long and substantial expertise in class litigation on behalf of low-income West Virginians. Counsel for the putative class are knowledgeable about the conditions of confinement in correctional facilities, the rights of individuals with disabilities, and are skilled in conducting civil rights litigation in the federal courts, including the prosecution and management of class action litigation.
118. Defendants Jividen and Wood have acted or refused to act on grounds generally applicable to the class, thereby making final equitable relief with respect to the class as a whole an appropriate remedy.
IV. DAMAGES 119. As a result of the Defendants violations of law based on the failure to provide medical and mental health treatment upon admission to jails in West Virginia, as well as the failure to provide minimum civilized measure of life’s necessities at Western Regional, plaintiffs and all similarly situated inmates have been harmed physically, mentally, and emotionally, and their constitutional rights have been violated.

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CLAIMS COUNT I VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEED (42 U.S.C. § 1983) 120. Plaintiffs incorporate the proceeding paragraphs by reference. 121. Plaintiffs bring this claim on behalf of themselves and all similarly situated inmates, i.e., all inmates admitted to jails in West Virginia during the class period who had a discernible and treatable health condition. 122. Defendant Commissioner Jividen has violated the Eighth Amendment right of convicted inmates to be free from cruel and unusual punishment, and the Fourteenth Amendment right of pretrial detainees to be free from punishment without due process, by acting with deliberate indifference to the serious medical needs of plaintiffs and similarly situated inmates. 123. As described herein, jails in West Virginia routinely fail to promptly provide necessary medical and mental health treatment to inmates upon admission. 124. Defendant Jividen, as Commissioner of the WVDOCR, is charged with establishing, monitoring, and enforcing policies and procedures that ensure constitutional confinement and treatment of all inmates in the custody of the WVDOCR. 125. Defendant Jividen, while acting under color of state law, has been deliberately indifferent to the serious medical needs of Plaintiffs and other similarly situated inmates by failing to establish, monitor, and/or enforce policy directives and operational procedures to ensure that inmates admitted to jails in West Virginia receive prompt treatment for their medical and mental health conditions. 126. The actions and/or inactions of the Defendant violate clearly established law.

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127. Plaintiffs and other similarly situated inmates have suffered harm as the direct and/or proximate result of Defendant’s deliberate indifference to their serious medical needs, including by suffering physical pain when going through unnecessary withdrawal symptoms due to the denial of medically necessary medications; developing psychosis due to lack of treatment, which can result in being subjected to a use of force by correctional officers, or becoming involved in altercations with fellow inmates; physical, mental and emotional distress of suffering from depression, anxiety and other forms of mental illness due to lack of treatment; being made susceptible to significant medical risks, including seizures, asthma attacks, heart attacks, strokes, aneurisms, and increased vulnerability to infections due to a compromised immune system, among others; and mental and emotional anguish as a result of knowing that certain medication and/or treatment is necessary to ensure health and safety, but being denied said treatment.
128. The actions of the Defendant were committed under the color of state law, and were unreasonable, deliberate, and deprived Plaintiffs and other similarly situated inmates of clearly established constitutional rights of which a reasonable prison administrator should have known pursuant to the Eighth and Fourteenth Amendments to the United States Constitution.
WHEREFORE, Plaintiffs, on behalf of themselves and other similarly situated inmates, respectfully request that the Court:
(a) Certify the class pursuant to Federal Rule of Civil Procedure 23; (b) Declare that Defendant’s actions and/or inactions as stated herein violate
the Eighth and Fourteenth Amendments to the United States Constitution; (c) Enjoin Defendant from all unconstitutional practices as set forth herein, and require Defendant to implement or enforce policies, procedures, and

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practices necessary to ensure prompt medical and mental health care is provided to all inmates admitted to a jail in West Virginia, and provide the training, equipment and supplies necessary to all relevant employees to ensure those policies and practices are implemented with fidelity; (d) Award attorney’s fees and costs incurred during the course of this litigation, pursuant to 42 U.S.C. § 1988; and (e) Grant such other and further relief to which plaintiffs or the class or subclass members may be entitled in law or equity.
COUNT II VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
(42 U.S.C. § 12132) 129. Plaintiffs incorporate the proceeding paragraphs by reference. 130. Plaintiffs Baxley and Jones bring this claim on behalf of themselves and a subclass of all similarly situated inmates, i.e., all inmates admitted to jails in West Virginia within the class period who, at the time of admission, met the standards of being a qualified individual with a disability under the ADA. 131. Title II of the ADA, 42 U.S.C. § 12132, provides that “no qualified individual with a disability shall, by reason of disability, be excluded from any participation in or be denied the benefits of the servicers, programs, or activities of a public entity, or be subject to discrimination by such entity.” 132. WVDOCR is a public entity subject to and governed by requirements and prohibitions of Title II of the ADA. 133. In violation of the ADA and 28 C.F.R. § 35.130(b), Defendant has committed and is continuing to commit unlawful acts of discrimination, including:

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(a) failing to afford qualified individuals with disabilities an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(b) providing qualified individuals with disabilities with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(c) utilizing criteria or methods of administration that have: (i) the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; and (ii) the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.
(d) Failing to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability; and
(e) Imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity.
134. Plaintiffs Baxley and Jones and the absent members of the class are qualified persons with disabilities protected against discrimination on the basis of their disabilities by the Americans with Disability Act.

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135. As alleged herein, by failing to implement a policy or procedure to provide appropriate medical and mental health services immediately upon entry to the State’s jails, Defendant Jividen has previously and continues to violate Title II of the ADA and its implementing regulations, through a pattern and practice of discrimination; inadequate and discriminatory methods of state-wide administration and supervision; a continuing pattern and practice of deliberate indifference; and violation of the reasonable accommodation requirement of federal law.
136. Therefore, Defendant Jividen has discriminated and continues to discriminate against plaintiffs and the absent members of the subclass in violation of 42 U.S.C. § 12132 and other substantive requirements and prohibitions of the ADA and its implementing regulations.
WHEREFORE, Plaintiffs, on behalf of themselves and other similarly situated individuals, respectfully request that this Court:
(a) Certify the subclass pursuant to Federal Rule of Civil Procedure 23; (b) Declare defendants in violation of the federal laws as explained above; (c) Enjoin defendants’ illegal discrimination and continuing violations of law,
and require implementation of policies and procedures that protect inmates’ rights under the ADA, including but not limited to creating a fully staffed ADA compliance office within WVDOCR, which is tasked with monitoring and ensuring the rights of inmates with qualifying disabilities are being met; (d) Award attorney’s fees and costs incurred during the course of this litigation, pursuant to 42 U.S.C. § 1988; and (e) Grant such other and further relief to which plaintiffs or the class or subclass members may be entitled in law or equity.

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COUNT III VIOLATIONS OF THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION PHYSICAL CONDITIONS OF CONFINEMENT
(42 U.S.C. § 1983) 137. Plaintiffs incorporate the proceeding paragraphs by reference. 138. Plaintiffs bring this claim on behalf of themselves and class of all similarly situated individuals, i.e., all inmates admitted to Western Regional Jail from December 18, 2018 and prospectively. 139. Defendants, while acting under the color of law, violated the Eight Amendment right of convicted inmates to be free from cruel and unusual punishment, and the Fourteenth Amendment right of pretrial detainees to be free of punishment without due process, by denying Plaintiffs and all similarly situated inmates the minimal civilized measure of life’s necessities. 140. As described herein, Plaintiffs and all similarly situated inmates at Western Regional have suffered and continue to suffer serious deprivations of basic human necessities, including sanitary living conditions, basic hygiene products such as soap and toilet paper, a bed to sleep on with basic bedding, and access to basic cleaning supplies and laundry facilities. 141. Defendants imposed and/or permitted these conditions despite these conditions not being reasonably related to a legitimate non-punitive governmental objective. 142. Defendants were deliberately indifferent to the health, safety, and other basic needs as described herein of Plaintiffs and all similarly situated inmates, having been notified of and having actual knowledge of such conditions and deliberately taking no action to remedy them in a timely or appropriate manner. 143. The actions of the Defendants were in violation of clearly established law.

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144. The Eighth Amendment to the United States Constitution prohibits the cruel and unusual punishment of inmates, including through depriving inmates of basic human needs.
145. The Fourteenth Amendment to the United States Constitution forbids punishing pretrial detainees without due process of law, including by imposing arbitrary conditions which are not reasonably related to a non-punitive governmental purpose.
146. During the time period at issue, it was clearly established that the serious deprivation of basic human needs as described herein violated the Eighth and Fourteenth Amendments to the United States Constitution.
147. As a direct or proximate result of the Defendants’ unconstitutional actions or inactions, Plaintiffs and other similarly situated inmates suffered harm including physical pain; loss of sleep; development of medical conditions, including septic infections, due to the unsanitary conditions; and embarrassment, humiliation, anxiety, and emotional distress.
148. The actions of the Defendants were committed under the color of state law, and were unreasonable, deliberate, and deprived Plaintiffs and other similarly situated inmates of clearly established constitutional rights of which a reasonable prison administrator should have known.
WHEREFORE, Plaintiffs, on behalf of themselves and other similarly situated inmates, request that the Court:
(a) Certify the class pursuant to Federal Rule of Civil Procedure 23; (b) Declare that Defendants’ actions and/or inactions as stated herein violate
the Eighth and Fourteenth Amendments to the United States Constitution; (c) Enjoin Defendants from engaging in unconstitutional practices as set forth
herein, and require Defendants to implement or enforce policies,

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procedures, and practices necessary to ensure the minimal civilized measure
of life’s necessities are provided to all inmates housed in Western Regional
Jail;
(d) Award attorney’s fees and costs incurred during the course of this litigation,
pursuant to 42 U.S.C. § 1988; and
(e) Grant such other and further relief to which plaintiffs or the class or subclass
members may be entitled in law or equity.
Respectfully Submitted, JOHN BAXLEY, JR., ERIC L. JONES, and SAMUEL STOUT, on behalf of themselves and other similarly situated inmates,
By Counsel:
/s/ Lydia C. Milnes Lydia C. Milnes (State Bar No. 10598) Jennifer S. Wagner (State Bar No. 10639) Mountain State Justice, Inc. 325 Willey Street Morgantown, WV 26505 Phone: (304) 326-0188 Facsimile: (304) 326-0189 lydia@msjlaw.org Counsel for Plaintiffs

 
 Case 3:18-cv-01526 Document 176 Filed 04/01/20 Page 1 of 2 PageID #: 1308

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

CIVIL ACTION NO. 3:18-1526

(Consolidated with 3:18-1533 and 3:18-1436)

BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and THE WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and SHELBY SEARLS, in his official capacity as the Superintendent of Western Regional Jail and Correctional Facility,

Defendants.

ORDER

This matter is before the Court in light of Plaintiffs’ pending Motion for a Preliminary

Injunction. ECF No. 161. Pursuant to discussion between the Court and counsel, the Court

DIRECTS Defendants to provide a redacted copy of the Defendants’ COVID-19 response plan to

the Court, Plaintiffs’ counsel, and their expert witness on or before 5:00 p.m. today. In light of

Defendants’ legitimate security concerns, the Court ORDERS that copies of the redacted plan

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may not be viewed by anyone other than Plaintiffs’ counsel or their designated expert without prior court approval. With respect to any redactions, the Court DIRECTS Defendants to provide an explanation of the subject matter that has been redacted and how it relates to their security concerns. Following receipt of the plan, the Court DIRECTS Plaintiffs to provide a declaration responding to the plan from their expert witness, Dr. Homer Venter, to the Court and Defendants’ counsel on or before 5:00 p.m. tomorrow, April 2, 2020. The Court DIRECTS Defendants to provide a response to Plaintiff’s expert’s declaration on or before 3:00 p.m. on Friday, April 3, 2020. The documents provided pursuant to this Order need not be filed pending the hearing.
As a final matter, the Court believes it is prudent to RESCHEDULE the hearing in this matter presently scheduled for April 2, 2020 at 10:00 a.m. to Monday, April 6, 2020 at 10:00 a.m. Any members of the public who are interested in attending the hearing must contact the Court’s Courtroom Deputy at (304) 528-7583 before 12:00 p.m. on Friday, April 3, 2020 to make arrangements to participate.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented parties.
ENTER: April 1, 2020
ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE
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 Case 3:18-cv-01526 Document 183 Filed 04/08/20 Page 1 of 19 PageID #: 1432

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

CIVIL ACTION NO. 3:18-1526

(Consolidated with 3:18-1533 and 3:18-1436)

BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and THE WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and SHELBY SEARLS, in his official capacity as the Superintendent of Western Regional Jail and Correctional Facility,

Defendants.

MEMORANDUM OPINION AND ORDER

Presently pending before the Court is Plaintiffs’ “Emergency Motion for Preliminary

Injunction Regarding Defendants’ Prevention, Management, and Treatment of COVID-19.” Mot.

for Prelim. Inj., ECF No. 161. Defendants timely filed a Response in Opposition, Resp. in Opp’n,

ECF No. 168, and Plaintiffs did the same with their Reply, Reply, ECF No. 173. The parties also

provided supplemental information to the Court, which has all been filed under seal. See Exs., ECF

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No. 181. The Court held a hearing on Plaintiffs’ Motion on April 6, 2020 and determined that the issues had been adequately presented through the parties’ submissions and oral argument, and therefore dispensed with the need for further witness testimony. Video Mot. Hr’g, ECF No. 180. For the reasons set forth below—as well as for those announced on the record at the hearing—the Court DENIES Plaintiffs’ Motion.
I. BACKGROUND This putative class action stems from allegations that the West Virginia Department of Corrections and Rehabilitation (“WVDCR”) has “acted with deliberate indifference to serious medical needs of inmates at the time of admission to jails in West Virginia.” Second Am. Compl.,1 ECF No. 67, at ¶ 182. The plaintiffs are divided into two putative classes: Class A, which “includes all persons who were at any time on or after December 18, 2018, or who will be, admitted to a jail in West Virginia with a discernable, treatable medical and/or mental health problem,” and Class B, which only “includes all persons who were at any time on or after December 18, 2018, inmates housed at Western Regional Jail and Correctional Facility, in Barboursville, West Virginia.” See id. at ¶¶ 24–241. As this action entered its second year, the COVID-19 pandemic began its rapid spread across the world and into West Virginia.2 Elected officials reacted swiftly at the state and federal level, with both the President of the United States and the Governor of West Virginia declaring
1 Though styled and docketed as the “First Amended Class Action Complaint for Injunctive and Declaratory Relief,” it is really the Second Amended Complaint and is referred to as such throughout this Memorandum Opinion and Order. See Mot. to File Second Am. Compl., ECF No. 62.
2 See Phil Kabler, Justice confirms WV’s first case of coronavirus, Herald-Dispatch (Mar. 17, 2020), available at https://www.herald-dispatch.-com/coronavirus/justice-confirms-wv-sfirst-case-of-coronavirus/article_7e034a25-949e-5085-8494-87ae9b570016.html.
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states of emergency in an attempt to slow the spread of the coronavirus pandemic.3 Given the unique characteristics of both jails and the disease, commentators and public health officials have remarked upon the outsized danger it may pose to prisoners and pretrial detainees who are housed in confined spaces and who share many communal resources and spaces.4
In light of these concerns, Plaintiffs filed the instant Motion for a Preliminary Injunction on March 25, 2020. See Mot. for Prelim. Inj., at 3. Plaintiffs sought two forms of injunctive relief. First, they moved for an order requiring Defendants to “develop, disclose, and implement a plan that undertakes all appropriate actions to protect Plaintiffs and others who are similarly situated.” Id. at 12. Second, they requested the Court order “WVDCR to release a sufficient number of inmates [to] reduce overcrowding and allow for appropriate social distancing within the jails and prisons to protect medically vulnerable inmates.” Id. at 13.
Given the unprecedented nature of the COVID-19 pandemic, the Court ordered an accelerated briefing schedule in response to Plaintiffs’ Motion. Order, ECF No. 165. Defendants timely filed their Response in Opposition, and raised several objections to Plaintiffs’ Motion. Resp. in Opp’n, at 3–20. Plaintiffs responded to many of these points in their Reply filed days later. Reply, at 1–21. The parties and the Court participated in a telephonic status conference on April 1, 2020, during which Defendants agreed to provide redacted copies of their COVID-19 response
3 See President Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), available at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/; Anthony Izaguirre, Justice Declares Emergency as Virus Threatens, Herald-Dispatch (Mar. 16, 2020), available at https://www.heralddispatch.com/coronavirus/justice-declares-emergency-as-virus-threatens/-article_56b823946d70-5f0c-9b67-054200edb616.html.
4 See German Lopez, A Coronavirus Outbreak in Jails or Prisons Could Turn Into a Nightmare, Vox.com (Mar. 17, 2020), available at https://www.vox.com/policy-andpolitics/2020/3/17/21181515/coronavirus-covid-19-jails-prisons-mass-incarceration; see also Beyrer Dec., ECF No. 161-1.
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plan to opposing counsel and the Court for review. The Court issued an order reflecting these discussions that same day, Order, ECF No. 176, and Defendants provided a redacted copy of their response plan. Plaintiffs responded to this plan with a verified declaration from their expert witness, Dr. Homer Venters, Venters Dec., ECF No. 9, and Defendants replied in turn with their own set of affidavits and their own memorandum addressing his concerns, Second Jividen Aff., ECF No. 181-1, Plumley Aff., ECF No. 181-2, Hissom Aff., ECF No. 181-3. The Court proceeded with the hearing scheduled for April 6, 2020, and heard argument from counsel on the merits of their respective positions. After entertaining argument, the Court determined that Plaintiffs had not established a likelihood of success on the merits of their claim for deliberate indifference.
II. LEGAL STANDARD “[P]reliminary injunctions are extraordinary remedies involving the exercise of very farreaching power to be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal citations and quotations omitted). It follows that a court may not issue a preliminary injunction absent “a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20. These factors are not weighted equally; instead, “the two most important are those of probable irreparable injury to the plaintiff if an injunction is not issued and likely harm to the defendant if an injunction is issued.” N.C. State Ports Auth. v. Dart Containerline Co., 592 F.2d 749, 750 (4th Cir. 1979). The burden of proof rests with the party seeking a preliminary injunction,
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not with the party opposing its issuance. Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 445 (1974).
High though this initial threshold may be for Plaintiffs, it perhaps understates the legal implications raised by the instant case. “[S]weeping intervention in the management of state prisons is rarely appropriate when exercising the equitable powers of the federal courts,” and this “is especially true where mandatory injunctive relief is sought and only preliminary findings as to the plaintiffs’ likelihood of success on the merits have been made.” Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir. 1994). This makes sense, inasmuch as “[m]andatory injunctions alter the status quo” by requiring a party to take a particular action, whereas “prohibitory injunctions aim to maintain the status quo and prevent irreparable harm while a lawsuit remains pending.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (internal citations and quotations omitted). In fact, mandatory preliminary relief “goes well beyond simply maintaining the status quo pendent lite, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.” Taylor, at 270 n.2 (quoting Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)). Indeed, “absent the most extraordinary circumstances, federal courts are not to immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities.” Id. at 268; see also Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) (“[J]udicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.”). Put succinctly: “it is not for the federal courts to . . . micromange the Nation’s prisons.” O’Dell v. Netherland, 112 F.3d 773, 777 (4th Cir. 1997).
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III. DISCUSSION Both parties raise several arguments in support of their positions that warrant a careful and searching examination of the record. The Court will first consider Defendants’ contentions that both exhaustion and the substance of Plaintiffs’ operative Second Amended Complaint do not permit consideration of their Motion.5 Having disposed of both arguments, the Court will turn to an analysis of the substance of Plaintiffs’ Motion. With the evidence presently before the Court, it is clear that Plaintiffs cannot meet their burden and their Motion must be denied. A. Defendants’ Arguments
1. Exhaustion Defendants first contend that the Prison Litigation Reform Act (“PLRA”) imposes an exhaustion requirement that bars Plaintiffs’ Motion. See Resp. in Opp’n, at 5–6. They point specifically to § 803 of the PLRA, which provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is mandatory, regardless of the type of relief sought or offered through administrative channels. Booth v. Churner, 532 U.S. 731, 741 (2001).
5 Defendants also expend considerable energy in their Response in Opposition fixating on the fact that portions of Plaintiffs’ Motion and supporting affidavits are drawn from documents filed in Dawson v. Asher, Case No. C20-0409JLR-MAT, in the Western District of Washington. See Resp. in Opp’n, at 9–11. This may well be the case, but it is of no import whatsoever for the purposes of resolving the pending Motion. The Court will carefully consider Plaintiffs’ claims and supporting evidence as it would in any other case, and attaches no significance to the fact that some of Plaintiffs’ arguments may be drawn from other material.
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Here, Defendants’ argument is belied by the plain text of the PLRA’s exhaustion requirement. In pertinent part, the provision mandates that “no action shall be brought” with respect to prison conditions prior to exhaustion—not that no motion may be filed with respect to the same. See 42 U.S.C. § 1997e(a). To the extent Defendants are attempting to argue that this entire action is not properly before the Court for Plaintiffs’ failure to exhaust administrative remedies, the Court reminds Defendants that “failure to exhaust available administrative remedies is an affirmative defense, not a jurisdictional requirement, and thus inmates need not plead exhaustion, nor do they bear the burden of proving it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)). It follows that Plaintiffs’ purported failure to exhaust administrative remedies is an insufficient justification for denying their pending Motion.
2. Relevance to this Case Defendants next point out that this action was initiated long before the COVID-19 pandemic reached the United States (and, indeed, likely long before the disease infected a single person). Resp. in Opp’n, at 11–12. They claim that “Plaintiffs are now improperly attempting to bootstrap claims related to the COVID-19 pandemic that have nothing to do with the claims previously pled and which claims did not even exist at the time the Amended Complaint was filed.” Id. at 11. This is a bold argument, as Defendants themselves recognize that “this case as pled is about . . . statewide claims related to how inmates generally receive medical and mental health treatment upon admission.” Id. The Court believes this language is sufficiently broad to encompass claims for medical treatment for COVID-19, but even if it were not the Court would grant leave for Plaintiffs to serve a supplemental pleading on Defendants pursuant to Rule 15(d) of the Federal
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Rules of Civil Procedure.6 Rather than tangle this timely Motion in avoidable procedural knots, the Court construes Plaintiffs’ Second Amended Complaint—which, at bottom, seeks to address medical care available in West Virginia jails and prisons—as encompassing just the sort of claims raised by Plaintiffs’ Motion.
B. Merits Analysis Having considered Defendants’ procedural defenses, the Court turns to the merits of
Plaintiffs’ Motion. As part of doing so, it is worthwhile to review the significant amount of evidence that both parties put before the Court prior to oral argument. In responding to Plaintiffs’ Motion, Defendants attached an Affidavit from Defendant Betsy Jividen detailing the actions that she and the WVDCR had so far taken with respect to the COVID-19 pandemic. First Jividen Aff., ECF No. 168-1. Jividen affirmed that she issued a memorandum to all WVDCR employees on March 11, 2020 that provided information about the virus and issued instructions for responding to it. Id. at ¶¶ 2–12. She further explained that the WVDCR adopted a Policy Directive on March 20, 2020 that provided for a comprehensive response to COVID-19 in state prisons and jails. Id. at ¶¶ 13–23. Finally, she issued a memorandum on March 26, 2020 that included the Centers for Disease Control and Prevention’s (“CDC’s”) guidance for correctional and detention facilities. Id. at ¶ 26.
In reply, Plaintiffs provided a “Sample COVID-19 Plan” that had been developed by VitalCore Health Strategies.7 See Sample COVID-19 Plan, ECF No. 173-1. The forty-three page
6 In pertinent part, Rule 15(d) provides that “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). The COVID-19 pandemic is exactly the sort of occurrence or event that would justify service of a supplemental pleading.
7 VitalCore is a private company that aims to improve health care services in correctional facilities. See https://vitalcorehs.com/ (last visited Apr. 7, 2020).
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document provides clear instructions to prison staff for preventing and isolating the disease, as
well as a series of worksheets for facilities to complete in order to gauge compliance with the plan.
Id. Pursuant to this Court’s order, Defendants subsequently produced a redacted copy of their
COVID-19 response plan to the Court, Plaintiffs’ counsel, and Plaintiffs’ expert witness. Policy
Directive, ECF No. 181-4; CDC Guidance, ECF No. 181-5. The plan—adapted from an earlier
plan prepared by VitalCore—addressed many of the same issues as Plaintiffs’ proposed plan, and included many of the same worksheets.8 Plaintiffs’ expert, Dr. Homer Venters, reviewed the plan
and provided a declaration addressing its purported weaknesses. Venters Dec., at ¶¶ 17–18. Many
of his conclusions did not address the adequacy of the plan itself, but rather the adequacy of its implementation.9 See id. at ¶ 18.
Nevertheless, the Court directed Defendants to provide a memorandum10 responding to
Venters’ Declaration along with verified affidavits or declarations of their own. Order, ECF
No. 179. Defendants did so, and their affidavits demonstrated that Defendants had already taken steps to implement the plan they had earlier provided to the Court.11 See generally Second Jividen
Aff.; Plumley Aff.; Hissom Aff. Two of these steps are of particular importance: the expanded use
8 The CDC guidance—incorporated by reference into Defendants’ plan—accounts for many of the subsequent changes in VitalCore’s own plan that Plaintiffs submitted as a sample. See Sample COVID-19 Plan, at 1 (“Below are substantive updates primarily based on the new CDC guidance.”).
9 Indeed, Venters urged the WVDCR to fully implement the plan immediately. Venters Dec., at ¶ 18(i).
10 In their Memorandum, Defendants mention that they requested and reviewed notes of conversations with five inmates that formed the basis of Dr. Venters’ expert opinions. Resp. Mem., ECF No. 181-6, at 2 n.1. As Defendants point out, these notes revealed far from uniform condemnation of WVDCR’s response to the COVID-19 crisis. See, e.g., id. at 6 (“Plaintiff Edmondson . . . thought that his facility had ‘[r]eally done a good job with disinfectants’ . . . . Plaintiff Baxley admitted that . . . the facility is ‘pretty decent about getting them hygiene there.’”).
11 Lending further support to this finding are photographs of signs—and examples of the signs themselves—provided to the Court by Defendants in advance of the hearing.
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of furlough programs to reduce crowding in West Virginia jails and prisons, Second Jividen Aff., at 2, and the timely completion of the worksheets attached to Defendants’ response plan, Plumley Aff., at 1. All this demonstrates that Defendants are implementing the plan developed by the very sources Plaintiffs themselves have relied on for guidance in their submissions and expert declarations—namely, VitalCore and the CDC.
The probative weight of this evidence is what has permitted the Court to consider Plaintiffs’ Motion without further witness testimony.12 This is reinforced by the witnesses set to testify at the hearing; there is extremely limited probative value in calling several incarcerated witnesses to testify out of a system filled with thousands, and Plaintiffs’ expert was permitted to respond to Defendants at whatever length and depth he chose. Moreover, much of what inmates could testify to—say, the crowded conditions in various state correctional facilities—is already apparent from the evidence the parties have provided. See, e.g., Occupancy Chart, ECF No. 181-8 (showing overcapacity populations at five state jails). Any notes that Plaintiffs have collected regarding insufficient preparations for COVID-19 are not enough to outweigh Defendants’ evidence of ongoing implementation of their plan, including posted signs and notices across jail facilities.
Turning again to the substance of that Motion, Plaintiffs are seeking two forms of injunctive relief: an order requiring Defendants to “develop, disclose, and implement a plan that undertakes all appropriate actions to protect Plaintiffs and others who are similarly situated,” and an order directing “WVDCR to release a sufficient number of inmates [to] reduce overcrowding
12 The Court recognizes that Plaintiffs have maintained their objection to its decision to end the hearing without entertaining testimony. Nevertheless, Court notes that Rule 65 of the Federal Rules of Civil Procedure “does not require an evidentiary hearing” if “the party opposing the preliminary injunction [has] a fair opportunity to oppose the application and to prepare for such opposition.” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1311 (11th Cir. 1998). The Court afforded Defendants every opportunity to oppose Plaintiffs’ Motion, and in any event has ruled in their favor.
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and allow for appropriate social distancing within the jails and prisons to protect medically vulnerable inmates.” Mot. for Prelim. Inj., at 12–13. It bears repeating that this injunctive relief is sought in the context of a 42 U.S.C. § 1983 action alleging deliberate indifference to prisoners’ medical needs under the Eighth and Fourteenth Amendments to the United States Constitution. See Second Am. Compl., at ¶ 244. It is this legal and procedural framework that shapes the Court’s approach to Plaintiffs’ Motion.
1. Likelihood of Irreparable Harm The Court begins its analysis by considering the likelihood of irreparable harm, as “[t]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.” Samson v. Murray, 415 U.S. 61, 88 (1974). “‘Establishing a risk of irreparable harm is not enough. A plaintiff has the burden of proving a ‘clear showing of immediate irreparable injury.’” Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 812 (4th Cir. 1991) (quoting ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987)). High though this standard may be, the Court concludes that Plaintiffs have met it here. The COVID-19 pandemic is unprecedented, both as a matter of public health and as a matter of societal disruption. The disease itself appears highly communicable, and evidence suggests that the immediate likelihood of infection is only elevated in prisons. See, e.g., Meyer Dec., ECF No. 161-4. That prisoners have not yet been infected with COVID-19 is no bar to a finding of irreparable harm; indeed, as the United States Supreme Court has clarified, prison officials may be deliberately indifferent “to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 34 (1993). The question for West Virginia prisons is not the current rate of infection—to date, there have been no reported cases of COVID-19 in West Virginia jails
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or prisons—but rather the immediate likelihood of such infection. Given the rapidly-increasing numbers of infected individuals in West Virginia’s general population,13 the risk of transmission to prisoners is quite high.
Provided the likelihood of serious illness and even death accompanying the COVID-19 pandemic, the Court has little trouble concluding that the absence of a plan to mitigate its effects could result in irreparable harm to Plaintiffs. This reasoning aligns with that of many other courts that have confronted this issue in the context of the COVID-19 pandemic. See, e.g., Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Castillo v. Barr, CV 20-00605 TJH (AFMx), 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Zhang v. Barr, No. ED CV 20-00331-AB (RAOx), 2020 WL 1502607 (C.D. Cal. Mar. 27, 2020); Basank v. Decker, 20 Civ. 2518(AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020). Even Defendants concede that the disease poses a degree of risk, though they characterize it as “low and certainly not any greater than the risk of the public at large.”14 Resp. in Opp’n, at 18. The possibility that Plaintiffs could face a life-threatening—or even deadly—infection in prison constitutes exactly the sort of irreparable harm that injunctive relief is intended to remedy. It follows that the Court finds that Plaintiffs have made a clear showing that irreparable harm will result from inaction on Defendants’ part during the COVID-19 pandemic. As has already been discussed, however, Defendants have been far from inactive in preparing for the disease.
13 See Fred Pace, COVID-19 Cases Increase In West Virginia, Ohio, Kentucky, HeraldDispatch (Apr. 4, 2020), available at https://www.herald-dispatch.com/coronavirus/covid-19cases-increase-in-west-virginia-ohio-kentucky/article_93faca28-6bd9-515f-b5a2b44234c36e9a.html.
14 As noted throughout this Memorandum Opinion and Order, Plaintiffs have presented substantial evidence suggesting that the risk of contracting COVID-19 is higher in prisons than within the general population. See generally Meyer Dec. The Court is persuaded by this evidence.
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2. Likelihood of Success on the Merits Having determined that Plaintiffs would likely suffer irreparable harm absent a plan to mitigate the spread of COVID-19 in state prisons, the Court next considers whether they are likely to succeed on the merits of their deliberate indifference claims. As an initial matter, the Court recognizes that “the Eighth Amendment’s proscription of cruel and unusual punishments is violated by deliberate indifference to serious medical needs of prisoners.” Deliberate indifference, in turn, “is a very high standard [and] a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). For a prisoner to state a claim for deliberate indifference to her medical needs under § 1983, she “must demonstrate (1) a deprivation of [her] rights by the defendant that is, objectively, sufficiently serious and (2) that the defendant’s state of mind was one of deliberate indifference to inmate health or safety.” Carroll v. W. Va. Reg’l Jail & Corr. Facility Auth., No. 3:14-1702, 2015 WL 1395886, at *6 (S.D.W. Va. Mar. 25, 2015) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (internal quotations omitted). Regarding the second prong in particular, a plaintiff must demonstrate that a defendant “actually knew of and disregarded a substantial risk of serious injury to the detainee.” Young v. City of Mount Rainer, 238 F.3d 567, 575–76 (4th Cir. 2001). “The subjective component therefore sets a particularly high bar to recovery.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). It is this high bar that makes it unlikely that Plaintiffs could succeed on the merits of their claims.15 This is true for several reasons. First, the evidence before the Court suggests that Defendants have been anything but unresponsive to the threat posed by COVID-19. Although “[f]ailure to respond to an inmate’s known medical needs raises an inference [of] deliberate
15 For the purposes of this analysis, the Court assumes that COVID-19 is “sufficiently serious” to warrant medical attention. See Iko, 535 F.3d at 241.
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indifference to those needs,” Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990), no such failure is apparent here. In fact, Defendants have produced what appears to be a comprehensive plan addressing the spread of COVID-19 in state jails and prisons. The plan addresses procedures to limit the entrance of COVID-19 into the corrections system, as well as methods to limit intrafacility transmission and to transport infected individuals to hospitals for medical care. Policy Directive, at 2–3. Of course, a legal education is not a medical education and the Court is cognizant of its own limitations in reviewing the Defendants’ proffered plan. Yet Plaintiffs’ medical expert was provided an opportunity to review Defendants’ plan and comment upon it, and Defendants have provided what the Court considers adequate responses to each alleged shortcoming. The existence and ongoing implementation of Defendants’ COVID-19 response plan makes it impossible to conclude that Defendants “actually knew of and disregarded a substantial risk of serious injury to the detainee.” Young, 238 F.3d at 575–76. In fact, the opposite seems to be the case: Defendants have demonstrated actual knowledge of the risk of COVID-19, and regard it with the seriousness it deserves.
A second consideration for the Court is the intangibility of Plaintiffs’ actual requests. The Court notes that this Motion was filed with the principal goal of obtaining an order that would require Defendants to develop and execute an adequate COVID-19 response plan. This goal has since somewhat evolved, as Plaintiffs now recognize that Defendants have adopted a COVID-19 response plan drawn from the same source as their own proposed response plan. Instead of focusing on the adequacy of the plan, Plaintiffs argue that its implementation has been ineffective and that an indeterminate number of prisoners and detainees must be released to provide for increased social distancing within prisons and jail facilities. With respect to the first contention, the Court is mindful that—even apart from questions of its own authority—it cannot act as an
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administrator of state prison facilities to ensure that every element of Defendants’ plan is implemented to the letter. With respect to the second contention, Plaintiffs have been unable to provide any clear guidance to the Court as to how it could begin to approach the process of reducing crowding in state prisons. The Court is unwilling (and potentially unable) to simply pick an arbitrary occupancy target that would allay Plaintiffs’ concerns, and lacks the capacity to administer any sort of release or furlough policy based on “reasonableness” or another imprecise standard.16 As Defendants’ justifiably note, they are already attempting to reduce jail populations through the use of furlough programs. Second Jividen Aff., at 2. Yet determinations regarding release and furlough must be made on a case-by-case basis, taking into account the seriousness of an inmate’s underlying offense and the support network into which she will be discharged. Defendants have continually represented to the Court that they are already taking steps to reduce overcrowding and are considering others, and any order requiring them to do the same would be superfluous.
Finally, the timing of Plaintiffs’ Motion factors into the Court’s decision. At present, there have been no reported cases of COVID-19 in West Virginia prisons. This will likely change in the coming days and weeks, and Defendants’ plan will be stress-tested by the virus. It is possible that the measures Defendants propose to implement will be insufficient in confronting the virus, and may eventually give rise to a finding that Defendants are acting with deliberate indifference to the medical needs of West Virginia inmates. Yet, at present, it is impossible to conclude that Defendants have acted with the sort of deliberate indifference that could give rise to a
16 At the hearing, Plaintiffs suggested the appointment of a Special Master or an order directing the parties to engage in mediation as potential means for increasing the administrability of any injunction. The Court does not believe either option deals effectively with the problems inherent in making case-by-case determinations regarding the furlough or release of inmates.
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constitutional violation under the Eighth and Fourteenth Amendments. As such, the Court finds that Plaintiffs have not demonstrated a substantial likelihood of success on the merits of their claims.
3. Balance of Equities As Plaintiffs have succeeded in showing a likelihood of irreparable harm but failed in showing a likelihood of success on the merits, the Court is left to weigh the equities presented by this case. The threat of COVID-19 is the primary factor in the Court’s analysis, and would likely be dispositive had Defendants not taken any action to plan for the arrival of the virus in the West Virginia correctional system. Of course, this is not the case here; as noted earlier, Defendants have prepared a plan that appears to mitigate the threat of the disease. And mitigation is all that can be demanded in this case, as no technology yet exists that can cure or entirely prevent COVID-19. The best scientists in the world have been unable to eliminate the risk of the disease, and the Court can expect no more of Defendants. This alters the Court’s analysis significantly, and lessens the weight that Plaintiffs’ risk of irreparable harm would otherwise carry. On the opposite side of the scale, Defendants maintain a strong interest in promulgating their own policies for prison management outside the rare circumstances where the intervention of a court is absolutely necessary. See O’Dell, 112 F.3d at 777. There is also Defendants’ obvious interest in ensuring that incarcerated individuals actually complete their terms of incarceration. Defendants have also already made use of various state-authorized furlough programs, which allow them to advance their interests alongside Plaintiffs’ stated interest in increased social distancing. Second Jividen Aff., at 2. Finally—and perhaps most importantly—it is readily apparent that COVID-19 is a fast-moving threat that requires efficient and efficacious responses from state authorities. Defendants will need to make rapid decisions and take immediate action to stem the
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spread of the virus, and the Court’s intervention in these considerations would only inhibit their ability to do so. It is likely that any injunction would leave Defendants unsure of precisely what actions they could take without notifying Plaintiffs and the Court, thereby slowing any response and making disease prevention more difficult.
As the Court has noted at several points, evidence of an outbreak and the insufficiency of Defendants’ plan could alter this calculus. Yet, for the moment, Plaintiffs have failed to show that their interest in fending off COVID-19—which is tempered by Defendants’ plan to aid them in doing so—outweighs Defendants’ strong interest in managing state prisons.
4. Public Interest The fourth and final factor for the Court’s consideration asks whether a preliminary injunction would favor the public interest. This factor does not weigh heavily in either direction, as any injunction would likely be narrowly tailored to the West Virginia prison system rather than the public at large. Nevertheless, the Court sees obvious implications for public safety were it to issue a broader injunction and order the immediate release of a certain number of incarcerated individuals to allow for greater social distancing within prisons. On the other hand, public health is naturally a matter of public concern and limiting the spread of the COVID-19 virus is therefore well within the public interest. Preventing an outbreak within a prison from overwhelming local hospitals is another consideration in Plaintiffs’ favor, though the Court is not entirely sure an injunction could do more to prevent any such outbreak than Defendants’ current plan. It follows that, once again, Defendants’ policy tempers public health worries and persuades the Court that a preliminary injunction is not in the public interest at this time.
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5. Result Plaintiffs are right to be concerned for their health the midst of an unprecedented pandemic that has already transformed American life in fundamental ways. The likelihood that Plaintiffs will face irreparable harm from the spread of COVID-19 is no small matter, and is one that will only grow in significance as this pandemic progresses. Yet the Court is not free to ignore the steps Defendants have already taken to address the virus, which are comprehensive and based on best practices promulgated by a source Plaintiffs already appear to trust. These facts make it exceedingly unlikely that Plaintiffs could succeed on the merits of their claim that Defendants have acted with deliberate indifference toward inmates’ medical needs in light of COVID-19. It would be redundant for the Court to order relief that Defendants are in the midst of granting, and so the Court concludes that a preliminary injunction is not warranted here. Nevertheless, it is worth reiterating that the coronavirus pandemic is an ever-changing crisis that evolves by the hour more often than by the day. If Defendants’ plan is unable to adequately address the spread of COVID-19 in state prisons, Plaintiffs will likely have a much stronger likelihood of succeeding on the merits of their claims. As noted at the hearing, the Court believes that Defendants would be served well by consulting experts on disease transmission in prisons and taking their advice seriously. The Court similarly believes that exercising available furlough and other crowd-reduction policies available under West Virginia law is a prudent step in view of the recommendations contained in Defendants’ own plan. Nevertheless, the Court will not “immerse [itself] in the management of state prisons” absent the most extraordinary circumstances. Taylor, 34 F.3d at 268. Given Defendants’ actions, such circumstances do not exist in West Virginia jails or prisons at this time. Plaintiffs’ Motion is therefore denied.
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Case 3:18-cv-01526 Document 183 Filed 04/08/20 Page 19 of 19 PageID #: 1450 IV. CONCLUSION
For the foregoing reasons and for those announced on the record at the hearing, the Court DENIES Plaintiffs’ Motion, ECF No. 161, and DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to counsel of record and any unrepresented parties.
ENTER: April 8, 2020 ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE
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 Case 3:18-cv-01526 Document 187 Filed 04/10/20 Page 1 of 6 PageID #: 1463

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

CIVIL ACTION NO. 3:18-1526

(Judge Chambers)

BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and THE WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and SHELBY SEARLS, in his official capacity as the Superintendent of Western Regional Jail and Correctional Facility,

Defendants.

MEMORANDUM IN SUPPORT OF THE AMERICAN CIVIL LIBERTIES UNION OF WEST VIRGINIA’S EXPEDITED MOTION FOR LEAVE TO INTERVENE FOR
THE LIMITED PURPOSE OF SEEKING TO UNSEAL COURT RECORDS Pursuant to Rule 24 of the Federal Rules of Civil Procedure, the American Civil Liberties Union of West Virginia (ACLU-WV) moves this Court for leave to intervene for the limited purpose of seeking public access to portions of the record filed in this case by Plaintiffs and Defendants under seal. Because this motion pertains to an urgent public health concern— specifically, what, if any, policies Defendant has implemented to protect incarcerated individuals in light of COVID-19—movant respectfully requests this Court expedite the deadline for responsive briefing and set, if necessary, a hearing on this matter.

Case 3:18-cv-01526 Document 187 Filed 04/10/20 Page 2 of 6 PageID #: 1464
I. BACKGROUND On March 25, 2020, Plaintiffs—incarcerated individuals who filed suit in December 2018
seeking relief to ensure that proper and necessary medical care is provided in West Virginia jails—filed an emergency motion in this action requesting a preliminary injunction in light of COVID-19. Dkt. 161. The injunction, if granted, would require Defendants to “immediately develop and implement an appropriate plan for the prevention and management of COVID-19 in the State’s prisons and jails, as well as order other appropriate relief to ensure that infection does not spread unabated to inmates, correctional staff, and others in [the West Virginia Division of Corrections and Rehabilitation’s] custody.” Id. On March 26, this Court entered an Order establishing deadlines for expedited briefing and set a telephonic hearing for the following week. Dkt. 165. On March 30, Defendants filed a response to Plaintiffs’ motion and requested the Judge issue an order that would permit the Defendants to file its policies under seal and allow the Court to review the documents in camera. Dkt. 168. On April 1, the Court held a telephonic hearing and ordered Defendants to provide to the Court a copy of its COVID-19 response plan, to be filed under seal. Dkt. 176. The Order further required Plaintiffs to file a declaration, also to be held under seal, from their public health expert in response to Defendants’ plan. Dkt. 179. On April 6, a hearing by video on Plaintiffs’ emergency motion was held, and the Court denied Plaintiffs’ request for a preliminary injunction. Dkt. 182.
Almost one month prior to the April 6 hearing, undersigned counsel in this matter submitted a request to Commissioner Jividen pursuant to the West Virginia Freedom of Information Act (FOIA), West Virginia Code Section 29B-1-1, et seq., seeking the Division of Corrections and Rehabilitation’s (DOCR) COVID-19 response plan. Ex. A. The DOCR declined the request, stating that its plans were “exempt from disclosure” pursuant to an exemption from West Virginia’s FOIA that permits the state’s correctional facilities to withhold policy directives that, if released, could endanger public safety. Ex. B.
Movant on April 9 filed a habeas petition with the Supreme Court of Appeals of West Virginia seeking expedited relief from the court on behalf of 39 incarcerated petitioners in
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danger of contracting COVID-19 if the virus were to enter the state’s correctional facilities. Ex. C. Defendant Commissioner Jividen is a named respondent in that matter. Id.
Movant now files this expedited motion to intervene as well as an accompanying motion to lift the Court’s seal on the documents currently held under protective order. II. INTEREST OF MOVANT
Movant is a non-partisan, non-profit membership organization whose mission is to ensure the Bill of Rights and rights guaranteed by the West Virginia Constitution are preserved for each new generation. The ACLU-WV accomplishes these goals through litigation, legislative advocacy, grassroots organizing, and public education. The ACLU-WV has a long history of legal advocacy for government transparency and protecting the interests of the rights of the incarcerated.
Movant seeks to intervene for the limited purpose of moving to unseal court records pertaining to the Division of Correction and Rehabilitation and Department of Military and Public Safety’s response plans for correctional facilities under its purview in response to the COVID-19 health crisis. The issues raised in the documents sealed by the United States District Court for the Southern District of West Virginia in this case have significant implications for those incarcerated in West Virginia correctional facilities, the loved ones of incarcerated individuals, as well as for those employed in West Virginia’s correctional facilities. III. ARGUMENT
The Fourth Circuit has recognized, under both the common law and the First Amendment, that court records are presumptively open for public inspection, and that intervention is the proper procedural mechanism for seeking unsealing, and it has allowed intervention for the purpose of seeking unsealing. See e.g., Company Doe v. Public Citizen, 749 F.3d 246, 257 (4th Cir. 2014); Stone v. University of Maryland Med. System Corp., 855 F.2d 178, 180 (4th Cir. 1988). Many other state and federal courts have similarly upheld the right of third parties to seek intervention to seek unsealing. See e.g., Flynt v. Lombardi, 782 F.3d 963, 966 (8th Cir. 2015); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 657 (3d
3

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Cir. 1991); Public Citizen v. Liggett Grp., 858 F.2d 775, 783 (1st Cir.1988); In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 144 (2d Cir. 1987); Rocky Mt. Bank v. Google, Inc., 2010 WL 11545710, at *2 (N.D. Cal. Jan. 27, 2010), rev’d on other grounds, 428 Fed. App’x. 690, 692 (9th Cir. 2011); Cardiac Pacemakers, Inc. v. Aspen II Holding Co., 2006 WL 3043180, at *2 (D. Minn. Oct. 24, 2006); Chao v. Estate of Fitzsimmons, 349 F. Supp. 2d 1082, 1085 (N.D. Ill. 2004), opinion clarified, 2004 WL 3094821 (N.D. Ill. Dec. 9, 2004); Verni ex rel. Burstein v. Lanzaro, 404 N.J.Super. 16, 960 A.2d 405 (2008); Hammock by Hammock v. Hoffman-LaRoche, 142 N.J. 356, 662 A.2d 546 (1995).
Permissive intervention under Federal Rule of Civil Procedure 24(b) is the appropriate mechanism for non-parties to an action to seek access to judicial records. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, 858 F.2d at 783). See also In re Grand Jury Subpoena, 836 F.2d 1468, 1470 (4th Cir. 1988) (permissive intervention would have been proper way for nonparty to civil litigation to seek access to deposition transcripts subject to protective order). Rule 24(b)(1) provides, in pertinent part, that “[o]n timely motion, the court may permit anyone to intervene who: ... (B) has a claim or defense that shares with the main action a common question of law or fact.”
Notably, the District Court in the Northern District of West Virginia in January of this year granted a motion by four non-profit movants to intervene to unseal court records in a similar matter. See Order Granting Mot. Intervene, Granting Mot. Unseal Recs., and Unsealing Two Docs., Hosaflook v. Ocwen Loan Serv’g., 1:17-cv-00028-IMK (filed Jan. 20, 2020), attached to this memorandum as Exhibit D. In doing so, the Court noted that the nonprofits represented the public (in that case, consumers) and its interests and that the people they represent share claims in common with those at issue in this case. Id. at 3. Therefore, the Court concluded that it was “a proper exercise of its discretion” to permit the four movants to intervene in the matter. Id.
Here, movant is counsel of record in a matter centered on COVID-19 and the health risks the virus poses to incarcerated individuals in the event of an outbreak in West Virginia’s prisons and jails. Ex. C. Further, core to movant’s organizational mission is to demand protection from
4

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the government for society’s most vulnerable, including those that are incarcerated. Just as in Hosaflook, it would be “a proper exercise of [the Court’s] discretion” to permit the movant to intervene.
Given that the Court has ruled on Plaintiffs’ emergency request for relief, the motion to intervene is timely, as no “adjudication of the rights of the existing parties” will be prejudiced by movants’ intervention at this time. United Nuclear, 905 F.2d at 1427 (timeliness “to be determined from all the circumstances”) (quoting NAACP v. New York, 413 U.S. 345, 365-66 (1973)).
Finally, movants are well-positioned to represent the public’s right of access given their strong interests in demanding government transparency and access to democracy. IV. CONCLUSION
The motion by the American Civil Liberties Union of West Virginia for leave to intervene should be granted.
Respectfully submitted,
AMERICAN CIVIL LIBERTIES UNION OF WEST VIRGINIA FOUNDATION
/s/ Loree Stark______________________ Loree Stark West Virginia Bar No. 12936 WV Bar No. 12936 ACLU of West Virginia Foundation P.O. Box 3952 Charleston, WV 25339-3952 (914) 393-4614 / (304) 345-0207 (f) lstark@acluwv.org
5

Case 3:18-cv-01526 Document 187 Filed 04/10/20 Page 6 of 6 PageID #: 1468

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

CIVIL ACTION NO. 3:18-1526

(Judge Chambers)

BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and THE WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and SHELBY SEARLS, in his official capacity as the Superintendent of Western Regional Jail and Correctional Facility,

Defendants. CERTIFICATE OF SERVICE
I, Loree Stark, do hereby certify that on this 10th day of April, 2020, I electronically filed a true and exact copy of Memorandum in Support of American Civil Liberties Union of West Virginia’s Expedited Motion for Leave to Intervene for the Limited Purpose of Seeking to Unseal Court Records with the Clerk of Court and all parties represented by counsel using the CM/ECF System.

/s/ Loree Stark______________________ West Virginia Bar No. 12936
6

 
 Case 3:18-cv-01526 Document 193 Filed 04/15/20 Page 1 of 2 PageID #: 1593

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

CIVIL ACTION NO. 3:18-1526

(Consolidated with 3:18-1533 and 3:18-1436)

BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and THE WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and CARL ALDRIDGE, in his official capacity as the Superintendent of Western Regional Jail and Correctional Facility,

Defendants.

ORDER

Pending before the Court is an “Expedited Motion by the American Civil Liberties Union

of West Virginia for Leave to Intervene for the Limited Purpose of Seeking to Unseal Court

Records.” ACLU Mot., ECF No. 186. By Order dated April 13, 2020, the Court required both

parties to submit briefs on the narrow question of the American Civil Liberties Union of West

Virginia’s (“Movant’s”) intervention in this matter. Defendants do not dispute that this Court

Case 3:18-cv-01526 Document 193 Filed 04/15/20 Page 2 of 2 PageID #: 1594 retains the discretion to permit intervention by Movant pursuant to Rule 24(b) of the Federal Rules of Civil Procedure, and do not object to the Court exercising that discretion here. See ECF No. 191. Consequently, the Court GRANTS Movant’s Motion, ECF No. 186, and DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented parties.
ENTER: April 15, 2020 ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE
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 Case 3:18-cv-01526 Document 198 Filed 04/22/20 Page 1 of 3 PageID #: 1726

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ SUPPLEMENT TO RESPONSE IN OPPOSITION TO MOTION TO UNSEAL COURT RECORDS

NOW COME the Defendants, Betsy Jividen, Commissioner of West Virginia Division of

Corrections and Rehabilitation (“WVDCR”), and Carl Aldridge, Superintendent of the Western

Regional Jail and Correctional Facility, by counsel, and hereby supplement their response to a

motion filed by the intervenor, American Civil Liberties Union of West Virginia (“ACLU-WV”),

to unseal certain court records (Doc. 188). In support thereof, Defendants aver:

1. As part of their initial response, Defendants offered to provide to the Court for in

camera review redacted versions of two affidavits, one of Marvin Plumley (Sealed Exhibit 2) and

one of Debbie Hissom (Sealed Exhibit 3).

2. Defendants are currently involved in the defense of a Petition for Writ of Habeas

Corpus filed by the intervenor before the Supreme Court of Appeals of West Virginia styled

Donald Miller, et al. v. Betsy Jividen, et al. (Appeal No. 20-0259).

3. On April 21, 2020, Defendants filed an Answer and Motion to Dismiss Petition for

Writ of Habeas Corpus in Miller. A redacted version of the Plumley Affidavit was made a part of

the Supplemental Appendix in conjunction with that filing, and the redactions are the same ones

Case 3:18-cv-01526 Document 198 Filed 04/22/20 Page 2 of 3 PageID #: 1727
that Defendants intend to proffer the Court for in camera review in this case. See redacted Plumley
Affidavit attached hereto as Exhibit 1.
4. Now that the redacted Plumley Affidavit has been filed in Miller, Defendants wish
to inform the Court that they have no objection to the Plumley Affidavit, in the redacted form set
forth in Exhibit 1, being unsealed.
5. Defendants respectfully reserve all other objections previously stated including
their objections to an unredacted version of the Plumley Affidavit being unsealed.
Respectfully submitted on behalf of all Defendants by:
PATRICK MORRISEY ATTORNEY GENERAL
/s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov LEWIS GLASSER PLLC
/s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lewisglasser.com
2

Case 3:18-cv-01526 Document 198 Filed 04/22/20 Page 3 of 3 PageID #: 1728

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 22nd day of April 2020, I electronically served a copy of the foregoing “DEFENDANTS’
SUPPLEMENT TO RESPONSE IN OPPOSITION TO MOTION TO UNSEAL COURT RECORDS” via the CM/ECF system that will send notification to the following counsel of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

Loree Beth Stark, Esq. ACLU of West Virginia Foundation Counsel for American Civil Liberties Union of West Virginia Foundation

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 198-1 Filed 04/22/20 Page 1 of 5 PageID #: 1729
EXHIBIT 1

Case 3:18-cv-01526 Document 198-1 Filed 04/22/20 Page 2 of 5 PageID #: 1730

Case 3:18-cv-01526 Document 198-1 Filed 04/22/20 Page 3 of 5 PageID #: 1731

Case 3:18-cv-01526 Document 198-1 Filed 04/22/20 Page 4 of 5 PageID #: 1732

Case 3:18-cv-01526 Document 198-1 Filed 04/22/20 Page 5 of 5 PageID #: 1733

 
 Case 3:18-cv-01526 Document 260 Filed 07/17/20 Page 1 of 4 PageID #: 2095

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendant.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO AMBER ARNETT AND ERIC L. JONES

NOW COMES the Defendant Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, in her official capacity only, and the West Virginia Division of

Corrections and Rehabilitation, by counsel, Webster J. Arceneaux, III, James C. Stebbins, and

Valerie H. Raupp of Lewis Glasser PLLC and Briana J. Marino, Assistant Attorney General for

the State of West Virginia, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and they

move this Honorable Court for summary judgment with regard to two of the Plaintiffs’ claims on

the grounds of mootness as set forth herein as follows:

1. Plaintiffs Amber Arnett and Eric L. Jones are both named plaintiff in the above styled civil action. At the time the Second Amended Complaint was filed on December 19, 2019, Ms. Arnett was a pretrial detainee at North Central Regional Jail, Comp. ¶ 15 and Mr. Jones had been released from Western Regional Jail, Comp. ¶ 13.

2. Mr. Jones was released from custody on or about May 19, 2019 as a result of discharging his sentence for Failure to Register as a Sexual Offender and a Parole violation related thereto. (See Affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(a)). Counsel for Mr. Jones agreed to set his deposition on June 17, 2020 (Doc. 227), but on the date the deposition was noticed, Mr.

Case 3:18-cv-01526 Document 260 Filed 07/17/20 Page 2 of 4 PageID #: 2096
Jones did not appear. (See Exhibit 2, Transcript of Jones Deposition). Based on information and belief, since that date, counsel for Mr. Jones has been unable to speak with him to re-schedule his deposition.
3. Ms. Arnett, had been charged with Fraudulent Use of an Access Device and Conspiracy and, on or about June 4, 2020, she posted bond and she was released from custody by a Judge of the Circuit Court of Wood County, West Virginia. (See Affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(b)). By coincidence, Ms. Arnett’s deposition had been set for June 8, 2020 (Doc. 211). Counsel for Ms. Arnett advised that they were unable to communicate with Ms. Arnett after her release and her deposition was postponed. Since that date, based upon information and belief, counsel for Ms. Arnett has been unable to communicate with her to re-schedule her deposition.
4. Plaintiffs Amber Arnett and Eric L. Jones clearly state in their Second Amended Complaint that “Plaintiffs bring this suit seeking solely declaratory and injunctive relief.” Comp. ¶2. Plaintiffs’ claims for declaratory and injunctive relief are moot, as Plaintiffs Amber Arnett and Eric L. Jones, are no longer housed in a West Virginia Regional Jail facility or Prison, as set forth in the affidavit of Jonathan E. Huffman, Exhibit 1.
5. This Court addressed an almost identical situation on a Motion to Dismiss filed by the West Virginia Regional Jail and Correctional Facilities Authority in S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at pp. 6-7, and it concluded that the Plaintiff’s claim for injunctive relief was mooted by his release.
6. This Court should likewise examine the facts and circumstances in this case and conclude that it is undisputed that Plaintiffs Amber Arnett and Eric L. Jones have been released
2

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from custody and that none of the exceptions to the mootness doctrine are present in this case that
would preclude this Court from dismissing the claims of these two Plaintiffs at this time.
WHEREFORE, based upon the foregoing, as more fully discussed in the Memorandum of
Law in Support, the Defendants respectfully request that this Court enter an order dismissing as
moot the Plaintiffs Amber Arnett and Eric L. Jones claims for declaratory and injunctive in this
case, and that it order any other further relief that the Court deems just and proper.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com
PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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Case 3:18-cv-01526 Document 260 Filed 07/17/20 Page 4 of 4 PageID #: 2098

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 17th day of July 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AS TO AMBER ARNETT AND ERIC L. JONES” and the
“MEMORANDUM OF LAW IN SUPPORT” via the CM/ECF system that will send notification
to the following counsel of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 261 Filed 07/17/20 Page 1 of 4 PageID #: 2108

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO AMBER ARNETT AND ERIC L. JONES

Defendants, pursuant to Rule 56 of the Federal Rules of Civil Procedure, have moved this

Honorable Court for summary judgment with regard to two of Plaintiffs’ claims on the grounds of

mootness. Plaintiffs Amber Arnett and Eric L. Jones have both been released from custody and

therefore, this Court should dismiss their claims against Defendants for declaratory and injunctive

relief as moot as more fully discussed herein.1

I. Plaintiffs’ Claims for Declaratory and Injunctive Relief are Moot.

Plaintiffs Amber Arnett and Eric L. Jones clearly state in their Complaint that “Plaintiffs

bring this suit seeking solely declaratory and injunctive relief.” Complaint, ¶2. Plaintiffs’ claims

for declaratory and injunctive relief are moot, as Plaintiffs Amber Arnett and Eric L. Jones, are no

longer housed in a West Virginia Regional Jail facility or Prison, as set forth in the affidavit of

Jonathan E. Huffman, attached to the Motion as Exhibit 1.

1 As set forth in the Motion, despite being class representatives, neither Ms. Arnett nor Mr. Jones have cooperated in this case by sitting for a deposition. Mr. Jones specifically failed to attend his deposition after it was noticed (Exhibit 2) and Ms. Arnett’s deposition was never scheduled because she did not respond to her counsel. Pursuant to Rule 37(d), Federal Rules of Civil Procedure, Defendants would have the right to move for dismissal of the Second Amended Complaint for these two plaintiffs as a sanction for their non-appearance at their depositions and if the Court is not inclined to dismiss on mootness grounds, they will file an additional motion to dismiss under Rule 37(d).

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This Court addressed an almost identical situation on a Motion to Dismiss filed by the West Virginia Regional Jail and Correctional Facilities Authority in S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at pp. 6-7, and it concluded that the Plaintiff’s claim for injunctive relief was mooted by his dismissal:
In this case, Plaintiff was paroled on March 28, 2017. While he was purportedly housed in a West Virginia correctional facility at the time he filed his Complaint, this is no longer the case. As Plaintiff is no longer housed in a WVRJCFA facility, he is no longer subject to the prison policy he challenges and, accordingly, has no “present interest affected by that policy.” As a result, the Court FINDS that Plaintiff’s claim for equitable relief against WVRJCFA is moot. In so holding, this Court relied upon the Court of Appeals decision in Incumaa v. Ozmint, 507 F.3d 281, 286-287 (4th Cir. S.C. 2007) and other similar decisions. This Court also concluded that none of the exceptions to the mootness doctrine were present in that case. Likewise, in Whitmore v. Western Reg’l Jail, 2019 U.S. Dist. LEXIS 133646 (S. D. W. Va. July 19, 2019), Magistrate Eifert reviewed a pro se inmate complaint regarding conditions at Western Regional Jail and found that the inmate’s transfer to a different correctional facility effectively mooted his claim for injunctive relief, that no exception applied and dismissed his claim for injunctive relief. Id. at pp. 11-13. This Court accepted and incorporated Magistrate Eifert’s findings and recommendation and dismissed the complaint with prejudice. Whitmore v. W. Reg’l Jail, 2019 U.S. Dist. LEXIS 132230 (S. D. W. Va. August 7, 2019). This case, like S.M.B. and Whitmore, should be dismissed as moot because Plaintiffs Amber Arnett and Eric L. Jones are no longer incarcerated in any Regional Jail or prison. It is undisputed that Plaintiff Jones was released from Western Regional Jail on May 19, 2020, and that
2

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Plaintiff Arnett was released from North Central Regional Jail on June 4, 2020. See Huffman
affidavit, Exhibit 1.
This Court should examine the facts and circumstances in this case and conclude that it is
undisputed that Plaintiffs Amber Arnett and Eric L. Jones have been released from custody and
that none of the exceptions to the mootness doctrine are present in this case that would preclude
this Court from dismissing the claims of these two Plaintiffs at this time.
II. Conclusion.
WHEREFORE, based upon the foregoing, the Defendants respectfully request that this
Court enter an order, as a matter of law, dismissing the claims of Plaintiffs Amber Arnett and Eric
L. Jones for declaratory and injunctive relief as moot, based on their release from the Regional
Jails were they were incarcerated, and that it order any other further relief that the Court deems
just and proper.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC
/s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com
PATRICK MORRISEY ATTORNEY GENERAL
/s/ Briana J. Marino Briana J. Marino (WVSB #11060)
3

Case 3:18-cv-01526 Document 261 Filed 07/17/20 Page 4 of 4 PageID #: 2111 Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendant.

AFFIDAVIT OF JONATHAN E. HUFFMAN
STATE OF WEST VIRGINIA COUNTY OF KANAWHA, To-wit:
I, Jonathan E. Huffman, being first duly sworn upon my oath, hereby come forth and state as follows:
1. I have worked at what is now known as the Division of Corrections and Rehabilitation, (“Corrections”) since September 2005. I am employed by Corrections as the Assistant Director for Records and Interstate Compact.
2. I am familiar with inmate records for the State of West Virginia. Pursuant to my review of records, I can state:
a. Mr. Eric L. Jones was previously incarcerated at Western Regional Jail from November 28, 2018, as a result of a Parole violation related to his sentence for Failure to Register as a Sexual Offender. Mr. Jones was released from custody on or about May 19, 2019 as a result of completing his sentence.

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b. Ms. Amber Arnett was previously incarcerated at North Central Regional Jail as a pretrial detainee from September 19, 2019, with a charge of Fraudulent Use of an Access Device and Conspiracy out of Wood County. During this incarceration she also had charges from Doddridge and Harrison County brought against her. On December 30, 2019, she was released from custody and ordered to a rehabilitation facility. On May 1, 2020, Ms. Arnett left the treatment facility and self-reported to North Central Regional Jail. On June 4, 2020, she posted bond and she was released from custody by a Clerk of the Circuit Court of Wood County, West Virginia.
c. Mr. John Baxley, Jr. was previously incarcerated at the Western Regional Jail in Barboursville, West Virginia beginning on August 16, 2018. Mr. Baxley was in jail facing charges of armed robbery, kidnapping, grand larceny, and burglary and he is now serving a 25-year determinate sentence for 2 counts of Robbery in the 1st Degree (counts are running concurrently). Since March 11, 2020, Plaintiff John Baxley has been incarcerated at Salem Correctional Center located on the border of Doddridge County and Harrison County, West Virginia. Salem Correctional Center is a medium security prison and not a jail.
d. Ms. Heather Reed was previously incarcerated at the Northern Regional Jail in Marshall County, West Virginia from April 10, 2019 to July 29, 2019 and at Tygart Valley Regional Jail in Randolph County, West Virginia from July 29, 2019 to November 20, 2019. Plaintiff Heather Reed is currently serving a sentence of 1-10 years and she is incarcerated at Lakin Correctional Center which is a prison in Mason County, West Virginia and not a jail. According to

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my records, Plaintiff has been arrested 21 times since 2002 and she is currently serving a sentence related to credit card fraud. e. Mr. Earl Edmondson was previously incarcerated at the Northern Regional Jail in Marshall County, West Virginia from July 15, 2019 to January 17, 2020. Thereafter, Mr. Edmondson was incarcerated for a short time at Martinsburg Correctional Center in Berkeley County, West Virginia (a prison) from January 17, 2020 to February 13, 2020. Plaintiff Earl Edmundson is currently serving a sentence of 1-5 years and he is incarcerated at the Pruntytown Correctional Center in Taylor County, West Virginia since February 13, 2020, for an unlawful assault. f. Mr. Joshua Hall was previously incarcerated at the North Central Regional Jail in Doddridge County, West Virginia from October 1, 2019 to February 26, 2020. Plaintiff Joshua Hall is currently serving a sentence of 1-5 years for Strangulation. Mr. Hall is currently incarcerated at Potomac Highlands Regional Jail in Hampshire County, West Virginia. But for the coronavirus, he would have already been transferred to a prison facility.

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 Case 3:18-cv-01526 Document 263 Filed 07/17/20 Page 1 of 5 PageID #: 2115

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO JOHN BAXLEY, JR.

NOW COMES the Defendant Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, in her official capacity only, and West Virginia Division of

Corrections and Rehabilitation, by counsel, Webster J. Arceneaux, III, James C. Stebbins, and

Valerie H. Raupp of Lewis Glasser PLLC and Briana J. Marino, Assistant Attorney General for

the State of West Virginia, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and they

move this Honorable Court for summary judgment with regard to the claims of John Baxley as set

forth herein as follows:

1. Plaintiff John Baxley, Jr. is a named plaintiff in the above styled civil action. At the time the Second Amended Complaint was filed on December 19, 2019, Mr. Baxley was convicted and he was an inmate at Western Regional Jail. Doc. 67 at ¶ 12.

2. Mr. Baxley, was transferred from the Western Regional Jail to the Salem Correctional Center on or about March 11, 2020 to serve his twenty-five year sentence. See Affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(c)).

Case 3:18-cv-01526 Document 263 Filed 07/17/20 Page 2 of 5 PageID #: 2116
3. Plaintiff Baxley clearly state in his Second Amended Complaint that this “is an action on behalf of inmates admitted to jail facilities throughout West Virginia . . . Plaintiffs seek to ensure that jails in West Virginia promptly provide appropriate and necessary medical and mental health treatment to inmates upon admission, . . .” Doc. 67 at ¶ 1. It is also undisputed that “Plaintiffs bring this suit seeking solely declaratory and injunctive relief.” Doc. 67 at ¶ 2. Plaintiff Baxley’s claims for declaratory and injunctive relief are moot, as Plaintiff is no longer housed in a West Virginia Regional Jail facility as set forth in the affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2c.
4. This Court addressed a similar situation on a Motion to Dismiss filed by the West Virginia Regional Jail and Correctional Facilities Authority in S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at pp. 6-7, and it concluded that the Plaintiff’s claim for injunctive relief was mooted by his release.
5. This Court should likewise examine the facts and circumstances in this case and conclude that it is undisputed that Plaintiff John Baxley, Jr. has been transferred from a Regional Jail facility to a prison and that none of the exceptions to the mootness doctrine are present in this case that would preclude this Court from dismissing the claim of Plaintiff Baxley at this time.
6. In addition, this Court should dismiss the claims of Plaintiff Baxley for failure to exhaust his administrative grievance remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
7. This Court should likewise dismiss the deliberate indifference claims in Count I of the Second Amended Complaint under the Eighth and Fourteenth Amendments, United States Constitution, under 42 U.S.C. § 1983, finding that Plaintiff Baxley does not have sufficient evidence to support his Count I claims.
2

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8. In addition, it is undisputed that all ten Regional Jails in West Virginia are certified by the National Commission on Correctional Health Care (“NCCHC”). This Court should conclude as a matter of law that NCCHC certification indicates that the ten Regional Jails in West Virginia meet the deliberate indifference standards under the Eighth and Fourteenth Amendments, United States Constitution, United States Constitution, and all claims by Plaintiff Baxley under Count I should be dismissed.
9. This Court should likewise dismiss the Count II claims under the Americans with Disability Act (“ADA”), 42 U.S.C § 12132, finding that neither Plaintiff Baxley or any other Plaintiffs have sufficient evidence to support their ADA claims under Count II.
10. Finally, this Court should at a minimum conclude that the claims in Count I under 42 U.S.C. § 1983 should be dismissed against WVDCR since it is not a person under that provision.
WHEREFORE, based upon the foregoing, as more fully discussed in the Memorandum of Law in Support, Defendants respectfully request that this Court enter an order dismissing as moot the Plaintiff John Baxley, Jr.’s claims Complaint for declaratory and injunctive under the Second Amended in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746
3

Case 3:18-cv-01526 Document 263 Filed 07/17/20 Page 4 of 5 PageID #: 2118
Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
4

Case 3:18-cv-01526 Document 263 Filed 07/17/20 Page 5 of 5 PageID #: 2119

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 17th day of July 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AS TO JOHN BAXLEY, JR.” and the “MEMORANDUM
OF LAW IN SUPPORT” via the CM/ECF system that will send notification to the following
counsel of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 265 Filed 07/17/20 Page 1 of 21 PageID #: 3529

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526 (Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO JOHN BAXLEY, JR.

Defendants, by counsel, pursuant to Rule 56 of the Federal Rules of Civil Procedure, have

moved this Honorable Court for summary judgment with regard to the claims of John Baxley as

set forth in the accompanying Motion for Summary Judgment. For the reasons set forth below,

this Plaintiff’s claims should be dismissed with prejudice.

STATEMENT OF FACTS Plaintiff John Baxley is currently incarcerated at Salem Correctional Center located on the border of Doddridge County and Harrison County, West Virginia. Salem Correctional Center is a medium security prison and not a jail. Prior to being incarcerated in Salem Correctional Center, Mr. Baxley was incarcerated for a period of time at the Western Regional Jail (WRJ) in Cabell County beginning on August 16, 2018. Mr. Baxley was in jail facing charges of armed robbery, kidnapping, grand larceny, and burglary and he is now serving a 25-year prison sentence. See Huffman affidavit, Exhibit 1 ¶ 2(c). Mr. Baxley claims that he suffers from depression, anxiety, bipolar disorder, paranoid delusional disorder, schizophrenia, seizure disorder, asthma, and substance abuse disorder. See Second Amended Complaint (Doc. 67) at ¶ 28. Plaintiff has several medical complaints from his

Case 3:18-cv-01526 Document 265 Filed 07/17/20 Page 2 of 21 PageID #: 3530
time at WRJ. First, he claims that when he was first admitted to WRJ, he was initially placed on suicide watch in a holding cell with several other inmates who were also on suicide watch without access to his required anti-psychotic or anti-depressant medications for 3 days. He claims that this caused him to suffer from withdrawal and caused him to go into a psychotic state. Id. at ¶¶ 31-35. The next complaint involves an incident that occurred on October 15, 2018, when Mr. Baxley alleges that he had not been receiving a proper medication regimen and began having auditory hallucinations such that he fell into a psychotic state and correctional officers allegedly came to his cell and subdued him with pepper spray. Id. at ¶¶ 37-39. Finally, Mr. Baxley alleges that in mid-December of 2018, he was transferred to a prison for a short time and then returned to WRJ with a “short supply” of medications. He claims that he went five days without his anti-depressants as a result of a failure of medical staff to timely re-order his medications. Id. at ¶¶ 40-42.
Regarding the initial intake/suicide watch claim that began with his admission to WRJ on August 16, 2018, plaintiff testified in his deposition that he was in a holding cell for 3 or 4 days and in suicide watch for at least two of those days. See Baxley deposition, Exhibit 2 at pp. 20-22. It is true that Mr. Baxley went without medications for several days. However, there are good reasons for this. First of all, Mr. Baxley fell asleep or passed out upon admission and later “woke up and I was in a paper suit.” Id. at 19. He had arrived at WRJ so intoxicated by drugs and alcohol that he was not capable of undergoing his initial medical screening on August 16, 2018, which was when he arrived. Further, Mr. Baxley’s medications had to be verified with the pharmacy and it is undisputed that a medical provider initially had trouble reaching Rite Aid to confirm his medications and this caused some of the delay. Id. The medical records further show that the medications for Mr. Baxley were all confirmed by a nurse by August 18, 2018 which was within
2

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two days of his intake assessment. See medical records at Bates No. DCR 000913-914.1 In the meantime, Mr. Baxley had already undergone a mental health assessment by a psychologist the day before (August 17, 2018). Id. at Bates No. 000933.
Plaintiff seems critical of the fact that he was placed on suicide watch shortly after he was admitted to WRJ. However, this was very reasonable because he had a very high suicide screening score after he reported during intake that he had recently lost his mother, was worried over his mental health situation, that he had an uncle and brother who had previously committed suicide, that he had bi-polar paranoid delusional disorder, that he had a history of prior drug and alcohol abuse, and that he had a prior suicide attempt. Medical records at Bates No. DCR 000903.
With respect to the incident on October 15, 2018 where Mr. Baxley was pepper sprayed by a correctional officer, plaintiff alleges that he was off of his medications and “lost it” when he was placed on suicide watch. Exhibit 2 at p. 83. However, the medical records demonstrate that he was receiving both his Depakote (for seizures and bi-polar) and his Seroquel (for hallucinations, schizophrenia, and bi-polar disorder) on a regular basis shortly before this incident. Medical records at Bates No. DCR 009806-9807. What really happened is that plaintiff did not want to go on suicide watch and refused to move to the booking area and eventually threw punches at correctional officers. See incident reports attached as Exhibit 3 at Bates Nos. DCR004124004126.
Significantly, Mr. Baxley admits that he never filed any grievances about any of the above events or any other occasion when he allegedly did not receive his medications. Exhibit 2 at pp. 43-44. He also admits that he generally knew how to file grievances using the kiosk system. Id. at p. 44. Mr. Baxley testified that he did not really know how to appeal grievances but he also
1 The medical records are referenced but not provided due to the confidentiality of the inmate’s medical records. They will be filed under seal if the Court so requests.
3

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admits that he never read the available Inmate Handbook that would have told him how to do this. Id. at 71. He also admitted that he never really had any reason to appeal a grievance because his complaints were always taken care of once he made them. Id.
STANDARD OF REVIEW Under Rule 56(c), Federal Rules of Civil Procedure, “Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is ‘no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”’ Kitchen v. Summers Continuous Care Center, LLC, 552 F.Supp.2d 589, 592 (S.D. W.Va. 2008). “The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 322-323 (1986). “The nonmoving party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]’” Piedmont Behavioral Health Ctr., LLC v. Stewart, 413 F.Supp.2d 746, 751 (S.D. W.Va. 2006) (Goodwin, J.). District Courts in West Virginia have applied this standard in granting motions for summary judgment in appropriate inmate cases involving Eighth Amendment issues related to health care and other matters. See Langley v Arresting Officers,2020 U.S. Dist. LEXIS 56160 (S.D. W.Va. 2020); Smith v PrimeCare Medical, et al., 2020 U.S. Dist. LEXIS 101065 (S.D. W.Va. 2020); and, Salmons v. Western Regional Jail, 2020 U.S. Dist. LEXIS 97540 (S.D. W.Va. 2020).
ARGUMENT I. PLAINTIFF JOHN BAXLEY, JR.’S CLAIMS FOR INJUNCTIVE AND
DECLARATORY RELIEF REGARDING INMATE MEDICAL CARE AT WEST VIRGINIA JAILS ARE MOOT SINCE HE HAS BEEN TRANSFERRED TO A PRISON. This Court has recognized that in prison cases the “prisoner challenging a specified prison
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policy must have a ‘present interest affected by that policy’ in order to be heard.” S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at p. 4 (quoting Weinstein v. Bradford, 423 U.S. 147, 148 (1975)). The Fourth Circuit has confirmed and implemented this principle through a general rule that “the transfer of an inmate from a unit or location where he is subject to the challenged policy, practice, or condition, to a different unit or location where he is no longer subject to the challenged policy, practice, or condition moots his claims for injunctive and declaratory relief…”. Incumma v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007). See also Rendelman v. Rouse, 569 F.3d 182, 18687 (4th Cir. 2009)(discussing this general rule of mootness and holding that the transfer out of Maryland Division of Corrections custody to federal prison after conviction mooted Plaintiff’s claim for injunctive relief)(internal citations omitted); Incumma, supra (discussing cases supporting the general rule of mootness of declaratory and injunctive relief claims when an inmate is released and finding the inmate’s claims for declaratory and injunctive relief under the First Amendment moot); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)(holding a prisoner transfer mooted claims for declaratory and injunctive relief). This is because once removed from the location, the inmate “no longer has a legally cognizable interest in a judicial decision on the merits of his claim.” Incumma, 507 F.3d at 287.
In S.M.B., supra, at pp. 6-7, this Court considered whether an inmate’s claim for injunctive relief was mooted by his parole:
In this case, Plaintiff was paroled on March 28, 2017. While he was purportedly housed in a West Virginia correctional facility at the time he filed his Complaint, this is no longer the case. As Plaintiff is no longer housed in a WVRJCFA facility, he is no longer subject to the prison policy he challenges and, accordingly, has no “present interest affected by that policy.” As a result, the Court FINDS that Plaintiff’s claim for equitable relief against WVRJCFA is moot. In so holding, this Court relied upon the Court of Appeals decision in Incumaa, supra, and other
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similar decisions. This Court also concluded that none of the exceptions to the mootness doctrine were present in that case. Likewise, in Whitmore v. Western Reg’l Jail, 2019 U.S. Dist. LEXIS 133646 (S. D. W. Va. July 19, 2019), Magistrate Eifert reviewed a pro se inmate complaint regarding conditions at WRJ and found that the inmate’s transfer to a different correctional facility effectively mooted his claim for injunctive relief, that no exception applied and dismissed his claim for injunctive relief. Id. at pp. 11-13. This Court accepted and incorporated Magistrate Eifert’s findings and recommendation and dismissed the complaint with prejudice. Whitmore v. W. Reg’l Jail, 2019 U.S. Dist. LEXIS 132230 (S. D. W. Va. August 7, 2019).
This case, like S.M.B. and Whitmore, should be dismissed as moot because Plaintiff Baxley is no longer an inmate of a Regional Jail governed by the policies challenged in the Second Amended Complaint. At the time the Second Amended Complaint was filed on December 19, 2019, Mr. Baxley had been sentenced for 25-years and he was an inmate at WRJ. Doc. 67 at ¶ 12. Mr. Baxley, was transferred from the WRJ to the Salem Correctional Center on or about March 11, 2020 to serve his twenty-five year sentence. See Huffman Affidavit, Exhibit 1 ¶ 2(c)). As such, he does not have a present interest affected by any of the challenged policies, practices or conditions raised in the Second Amended Complaint. No exceptions to the mootness doctrine should apply.
II. PLAINTIFF JOHN BAXLEY, JR. HAS NOT EXHAUSTED HIS ADMINISTRATIVE REMEDIES AS TO ANY CONDITION OF CONFINEMENT REFERENCED IN THE SECOND AMENDED COMPLAINT AND THEREFORE, IT SHOULD BE DISMISSED.
Plaintiff Baxley failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995, ("PLRA"), 42 U.S.C. § 1997 et seq. prior to seeking judicial redress. All of his claims related to an alleged failure to provide medical and mental health treatment to inmates upon admission to a Regional Jail should be dismissed because prisoners are required to exhaust
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their administrative remedies prior to bringing an action in court and that requirement was not met for any of Plaintiff Baxley’s claims. Likewise, any claim for a failure to accommodate a disability or claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12133 (“ADA”) is subject to the PLRA. See discussion infra. Specifically, Defendants argue that Plaintiff failed to do the following: (1) provide evidence of exhaustion; (2) timely appeal the decisions; and (3) grieve or exhaust issues related to medical treatment prior to the filing of the Second Amended Complaint. Further, there are no issues of fact regarding whether the grievance process is "available" to Plaintiff Baxley.
The PLRA, 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The term “prison conditions” as utilized by the PLRA is defined as “...conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings.” 18 U.S.C. § 3626(g)(2). In Porter v. Nussle, 534 U.S. 516, 531 (2002), the United States Supreme Court held that “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” The exhaustion requirement also applies regardless of the relief sought by the inmate through the administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001).
“Not only must a prisoner exhaust his administrative remedies, but he must also do so properly.” Wells v. Parkersburg Work Release Ctr., 2016 U.S. Dist. LEXIS 21026, 2016 WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 U.S. Dist. LEXIS 20459, 2016 WL 707457 (S.D. W. Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency's
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deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)).
If a plaintiff fails to exhaust his or her administrative remedies under the PLRA, then the defendant is entitled to judgment as a matter of law. Legg v. Adkins, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017). Whether an administrative remedy has been exhausted for purposes of the PLRA “is a question of law to be determined by the judge.” Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, 2017 WL 4004579, at *3 (S.D. W. Va. 2017) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)).2 Disputed questions of fact regarding exhaustion of administrative remedies are resolved by the court. See id.
The West Virginia Division of Corrections and Rehabilitation (“DCR”) provides a grievance procedure in order to ensure direct access to an administrative remedy for inmates regarding all aspects of their confinement, including claims for medical care and conditions of confinement. The Inmate Handbook sets forth the formal process through which an inmate may seek “redress over any matter concerning prison life.” Exhibit 4, excerpts of Inmate Handbook. Under Grievance Procedures outlined in the Inmate Handbook, an inmate may file a grievance to an Administrator and, if unsatisfied by the response, the inmate may appeal to the Chief of Operations. Id. Again, if the inmate is not satisfied with the response received or does not receive a timely response, a third level of administrative oversight is included in the policy: an appeal to
2 Like the PLRA, the WVPLRA “require[s] inmates to exhaust their administrative remedies before they bring a lawsuit.” Legg v. Adkins, No. 2:16-cv-01371, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017) (citing 42 U.S.C. § 1997e(a); W. Va. Code § 25-1A-2a(i)). Under the WVPLRA, “[a]n inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted.” W. Va. Code § 25-1A-2(c). The WVPLRA defines an ordinary administrative remedy as “a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life. . . .which includes health care” Id. § 25-1A-2(a). This Court should conclude that Plaintiff Baxley also failed to exhaust his grievances under the WVPLRA as well.
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the Commissioner of DCR. Id. While the PLRA requires administrative exhaustion prior to seeking judicial resolution of
a complaint, an inmate is only required to exhaust those administrative remedies which are actually available. 42 U.S.C. § 1997e(a)) (“The PLRA, however, requires exhaustion of only ‘such administrative remedies as are available.’”). "The availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is “on the books.” Ross v. Blake, 136 S. Ct. 1850 , 1859, 195 L. Ed. 2d 117 (2016)). Rather, a remedy is available only if it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859.
The Supreme Court noted three specific instances in which a remedy would not be “available” for purpose of PLRA exhaustion. Id. “First, an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross 136 S. Ct. at 1859, (citing Booth, 532 U.S. at 736, 738). Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Id. Finally, the third scenario in which the Supreme Court would find a remedy unavailable is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, once the defendant has made a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff. Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, *11, 2017 WL 4004579 (S. D. W. Va. 2017).
Plaintiff Baxley’s suit is subject to the requirement that all administrative remedies be exhausted prior to the suit being filed on December 19, 2019. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create
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a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003). Here, Plaintiff Baxley filed approximately forty-six grievances on the kiosk system utilized in the Regional Jails and eleven handwritten grievances. See Baxley grievances, Exhibit 5. Two of these were filed after this action was commenced. Not one of these grievances relates to or requests relief for the above stated complaints. Id.
Further, Mr. Baxley even admits to never filing grievances about not getting his medications. Exhibit 2 at pp. 43-44. If he had complaints about his medical care, these complaints were not made via the proper grievance procedures and his administrative remedies were not exhausted as required by the PLRA and WVPLRA.
Moreover, the grievance process is available to all inmates and certainly to Plaintiff Baxley. Furthermore, Plaintiff Baxley accessed and viewed the Inmate Handbook at least twice. See inmate kiosk viewing log, Exhibit 6. The Inmate Handbook and the grievance process are readily available via electronic means on the kiosk. Exhibit 4; see, also, kiosk screenshot, Exhibit 7. Clearly, by virtue of the fact that Mr. Baxley filed at least 54 grievances while he was at WRJ, he is aware of and able to use the grievance process.
Looking at this evidence as a whole, the Court must conclude that there are no genuine issues of material fact regarding whether the grievance process is available to Plaintiff Baxley and whether he properly exhausted the administrative remedies prior to bringing this action. Plaintiff routinely utilized the grievance process during his incarceration at WRJ, he just did not utilize the grievance process to properly exhaust his remedies related to his medical or ADA claims in this case. Therefore, the grievance process cannot be considered “unavailable” because he successfully filed at least 54 grievances in total. Instead, Plaintiff simply failed to exhaust the administrative
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remedies available to him via the grievance procedure set forth in the Inmate Handbook. “[T]he PLRA[‘]s exhaustion requirement requires proper exhaustion” to include all steps that the agency has established and doing so consistent with the instructions provided. Woodford v. Ngo, 548 U.S. 81, 90 & 93 (2006). Per his own admission, Baxley merely chose not to grieve his complaints related to medication. Exhibit 2 at pp. 43-44. For these reasons, pursuant to the PLRA, Defendants are entitled to summary judgment on all claims by Plaintiff Baxley due to his failure to exhaust his available administrative remedies under the PLRA.
III. THIS COURT SHOULD CONCLUDE AS A MATTER OF LAW THAT ALL OF THE DELIBERATE INDIFFERENCE CLAIMS FOR LACK OF MEDICAL AND MENTAL HEALTH TREATMENT UNDER COUNT I OF THE SECOND AMENDED COMPLAINT ARE WITHOUT MERIT.
Although an inmate is plainly entitled to receive adequate medical and mental health care while incarcerated, no inmate is entitled to receive, nor may he or she insist, that the State of West Virginia provide him with, the most sophisticated care that money can buy. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.1987). Rather the constitution only requires at Regional Jails, the facilities at issue in this case, that certain minimum standards of medical and mental health treatment are met, “not that they cater to the individual preference of each inmate.” Chase v. Quick, 596 F. Supp. 33, 35 (D.R.I. 1984). Deliberate indifference to a serious medical or mental health need of an inmate, including psychiatric care, can constitute unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976).
To adequately plead and prove an Eighth Amendment claim of deliberate indifference to the medical or mental health needs of an inmate, a plaintiff must satisfy a two-part test comprised of both objective and subjective components. First, Plaintiff must prove that the alleged deprivation of mental health treatment was “objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In order
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to satisfy the objective prong in a conditions of confinement claim, the prisoner must “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions,” or “demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions.” Importantly, “only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim.” Shakka v. Smith, 71 F.3d 162 (4th Circ. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 8-9 (1993)).
Second, Plaintiff Baxley must demonstrate by competent, reasonable, and admissible evidence that the prison official had “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3. This subjective prong of the test requires Plaintiff to prove that Defendants had actual knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. Only when the official is “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [draws] the inference” does the requisite degree of culpability exist to satisfy the second element of the inquiry. Id. Neither negligence nor medical malpractice in diagnosis or treatment of an inmate’s medical/mental health condition may give rise to an Eighth Amendment deliberate indifference claim.
Importantly, the Fourth Circuit reviews Eighth Amendment claims based on the totality of the circumstances. See, Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir. 1976); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 865 (4th Cir. 1975). This Court followed this same deliberate indifference standard related to the COVID-19 conditions at West Virginia Regional Jails and Prisons in its April 8, 2020, Order in this case denying the preliminary injunction, Doc. 183 at pp. 13-14, as the Court found that the inmates could not meet that standard.
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This Court’s decision on COVID-19 is well-reasoned and it equally applies in this instance. Just as Defendants had a plan to deal with the coronavirus, Defendants have a contract to deal with medical and mental health needs in this case. As set forth in paragraph 4 of the Affidavit of Commissioner Jividen (Exhibit 8):
DCR contracts with PrimeCare Medical, Inc. to provide health care to inmates at nine of the Regional Jails, all except for Northern Regional Jail. Health care is provided to inmates at Northern through Wexford Health Sources, Inc. Wexford also provides health care for all of the inmates at the Correctional Centers. Pursuant to the contracts, PrimeCare and Wexford are required to provide the proper staffing and adequate health care for inmates at their respective facilities. Id. The Court has further been provided with copies of the contracts with PrimeCare and Wexford for its review. A. Plaintiff Baxley Has Failed to Establish that Defendants were Deliberately
Indifferent to a Substantial Risk of Serious Harm to Plaintiff. Plaintiff Baxley cannot establish facts sufficient to proceed under § 1983 as to the objective prong of Farmer v. Brennan, supra. Under that prong, the Second Amended Complaint must allege that specific prison officials were deliberately indifferent to a risk of serious harm to the Plaintiff. Even assuming, arguendo, that Plaintiff Baxley had properly pled the requisite "serious deprivation" for an Eighth Amendment claim, Plaintiff cannot establish sufficient facts to establish the requisite “deliberate indifference” specifically as to Defendants.3 Commissioner Jividen has set forth in her affidavit that she is an attorney, not a licensed healthcare provider and that Defendants have no role in the delivery of healthcare in the Regional Jails. Exhibit 8 ¶¶ 8-9. Deliberate indifference requires a showing that the official was subjectively aware of a substantial risk of serious harm to an inmate. Farmer v. Brennan, supra, at 828. In order to possess
3 The only parties with the requisite knowledge regarding the delivery of medical and mental health care that should have been sued here, but were not, are PrimeCare and Wexford. This Court may note that the Defendants tried to join them as third-party defendants earlier, but the Plaintiffs opposed this joinder, and this Court agreed. Doc. 110.
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this level of culpability, “the official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id. To be liable, the prison officials must actually know of and disregard the risk. Id. at 837.
The Fourth Circuit has characterized the deliberate indifference standard as an “exacting one. Lightsey, 775 F.3d at 178.” Jones v. Chapman, 2017 U.S. Dist. LEXIS 87907 at *87-91 (D. Md. June 7, 2017). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness . . .” Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319 ( 4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986).” Id. “Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695-96 ( 4th Cir. 1999).
Magistrate Tinsley, writing for this district, recently addressed a very similar situation regarding medical care for an inmate in a proposed findings and recommendations for disposition in Greene v. Ballard, 2020 U.S. Dist. LEXIS 59180 (S.D. W.V. 2020), aff’d. 2020 U.S. Dist. LEXIS 53023 (S.D. W.V. 2020). In examining the second factor under the Farmer decision, Magistrate Tinsley at pp. 26-27, stated:
Defendants Ballard, Frame, Clifford, Mitchell, and Snyder appear to be correctional or administrative staff, and not licensed healthcare providers. The Second Amended Complaint does not specifically allege that any of these defendants interfered with the treatment being provided to Greene for his medical needs. To the extent that the Second Amended Complaint alleges that Greene was denied the ability to attend follow-up outside doctor's appointments, he has failed to specifically identify which defendant or defendants made those decisions….Thus, the Second Amended Complaint falls woefully short of sufficiently pleading the subjective component necessary to state a plausible claim of deliberate indifference on this basis. This Court should consider the decision in Greene and the deliberate indifference standard and reach a similar conclusion.
In the instant matter, Plaintiff has made allegations that Defendants were deliberately
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indifferent to his medical needs based on the medical care he received at WRJ. It is undisputed in
this case that none of those specific care allegations relate to any conduct by Defendants, instead
they appear to be grounded in policies. There is no indication that Defendants were either 1) aware
of the specific allegations of Plaintiff (nor could there be because he failed to properly follow the
administrative procedure in place) and 2) that they were aware or intended for the policies to be
an excessive risk to any inmate. Plaintiff has not identified a specific policy or procedure that
Defendants knew was inappropriate under the deliberate intent standard and therefore Plaintiff
cannot show “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3 nor can he show
that Defendants had an actual knowledge of and disregard for the “excessive risk to inmate health.”
Farmer, 511 U.S. at 837. This Court should determine as a matter of law that Plaintiff has wholly
failed to martial the necessary fact to establish deliberate indifference on the part of Defendants.
As such, all claims under Count I must be dismissed as a matter of law.
B. Defendants have required that PrimeCare and Wexford Maintain NCCHC Accreditation and this Court Should Rule as a Matter of Law that Meeting NCCHC’s Standards are Substantial Evidence of Compliance with the Constitutional Standards of Deliberate Indifference.
As set forth in paragraph 5 of Commissioner Jividen’s affidavit (Exhibit 8): [as] a part of the contracts, each health care facility operated by PrimeCare and Wexford are required to be accredited by National Commission on Correctional Health Care ("NCCHC"), a nationally recognized organization with the mission of improving the quality of health care in prisons. Every couple of years the NCCHC does a thorough audit of each facility and they review compliance with 39 essential standards and 20 important standards. The NCCHC requires 100% compliance with the essential standards for a facility to receive its accreditation. If you are not in full compliance with the essential standards, a contingent approval is provided and the facility is given a period of time to meet all of the essential standards.
Id. In ¶¶ 6-7 of her affidavit, she further attests that all nine of the PrimeCare Regional Jail health
care facilities have met the NCCHC accreditation standards and Wexford has received contingent
approval for its health care facility at Northern Regional Jail.
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The District Court in Balla v. Idaho State Board of Corrections, 2020 U.S. Dist. LEXIS 95915 (D. Idaho 2020) recently examined the NCCHC standards in an Eighth Amendment deliberate indifference case related to medical and mental health for inmates that has been ongoing for almost 40 years. In that case, the district court discussed at length the NCCHC standards and considered them as evidence of compliance with the Eighth Amendment deliberate indifference standard. The district court made clear that the NCCHC standards, as “best practices” are not the “constitutional floor” but something to be considered along with the fact in the case. Id. at p. 29. Based upon the foregoing and the evidence in the case, the district court dismissed the case. Likewise, this Court should consider the NCCHC standards for accreditation and the evidence in the case, and conclude as a matter of law that all claims under Count I must be dismissed.
IV. ALL CLAIMS UNDER COUNT II OF THE SECOND AMENDED COMPLAINT RELATED TO THE AMERICANS WITH DISABILITY ACT SHOULD BE DISMISSED AS A MATTER OF LAW.
Plaintiff’s claims in Count II under Title II of the Americans with Disabilities Act (“ADA”) likewise fail. In order to present a claim under the ADA, Plaintiff must establish: “(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program or activity; and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against on the basis of their disability.” Gordon v. Tygart Valley Reg’l Jail, 2013 U.S. Dist. LEXIS 28444 (N.D. W. Va. 2013)(citations omitted).
First, out of an abundance of caution, because there is some vagueness as to the basis of the Plaintiff’s ADA allegations based on the discovery to date, to the extent that Count II attempts to assert a claim against either Defendant under Title II of the ADA based on allegations that do not implicate constitutional rights, those claims are barred by sovereign immunity. See Sims v. Marano, 2020 U.S. Dist. LEXIS 20384 at 14-15 (W.D. Va. 2020)(Mem. Op.)(citing United States
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v. Georgia, 546 U.S. 151 (2006) and Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007)). To the extent that Count II attempts to assert a Title II claim under the ADA against Defendant Jividen in her official capacity, those claims are limited to prospective injunctive relief. Id. at 17.
Second, with regard to Title II clams under the ADA that are based on alleged constitutional violations, for the purposes of this Motion only, Defendants will assume Plaintiffs can meet the threshold to be considered disabled. However, even assuming, arguendo, that Plaintiff is disabled under this standard “courts routinely dismiss ADA suits by disabled inmates that allege inadequate medical treatment, but do not allege that the inmate was treated differently because of his/ her disability.” Gordon, supra, at 10. The Court found:
it is not enough, in asserting a Title II discrimination claim under the ADA, for the Plaintiff to show that he received inadequate care in light of his disability. He must demonstrate that he was excluded from participation in a program or activity, or otherwise discriminated against, on the basis of his disability. Id. at 12. In this case, Plaintiff Baxley cannot demonstrate such discrimination or that a request for accommodation that was denied and appealed through the required administrative process. In this case, Plaintiff Baxley claims that he did not receive necessary accommodations for his disabilities to enable him to participate in jail life in the same manner as non-disabled inmates. Doc. 67 at ¶ 185. In addition, he has alleged that Plaintiffs were discriminated against by a failure to provide reasonable accommodations. Id. at ¶ 186. The Amended Complaint further appears to allege that the Defendants’ policies do not provide for appropriate medical treatment, including mental health services, “immediately upon entry to the State jails” and that this is a violation of the ADA and is discrimination against the Plaintiffs. Id. at ¶ ¶ 257 and 258. See also Id. at ¶ 255. To the extent that Plaintiff attempts to argue that his ADA claims are based on the same facts as the allegations related to the claim of deliberate indifference discussed supra, Plaintiff’s argument fails. Plaintiff does not allege in this case that he is receiving different medical care
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because of his disability. Accordingly, any claim related to medical care appears to be that the medical care received was inadequate. At set forth above, Plaintiff’s allegations related to medical care fail to meet the deliberate indifference standard and must be dismissed. Regardless, it is well settled that a claim of inadequate medical care is insufficient to establish a claim under the ADA. See Gordon, supra. See also Mondowney v. Balt. Cty. Det. Ctr., 2019 U.S. Dist. LEXIS 119566, p. 58-59 (D. Md. 2019)(discussing cases finding that a lack of medical treatment does not violate rights under the ADA); Spencer v. Easter, 109 F. Appx. 571, 773 (4th Cir. 2004)(failure to provide timely medication refills not an ADA violation); Bryant v. Madigan, 84 F. 3d. 246, 249 (7th Cir. 1996)(ADA not violated by a simple failure to attend to the medical needs of disabled prisoners).
Plaintiff Baxley has failed to articulate how he has been treated differently because of his alleged disabilities with regard to any jail program or service. Plaintiff has not identified any program or service that that he sought to participate in and was denied entry based on his disability. Instead, the allegations in the Second Amended Complaint are generally stated as a lack of accommodation and a general reference to policies. However, when asked in discovery to identify any evidence of an ADA violation, Plaintiff provided no specific information, he simply objected to the timing, calling the interrogatory an “improper block buster request, and calls for a legal conclusion that Plaintiff is not qualified to answer,” and, notwithstanding that objection and without waiving the same, he identified his medical conditions but no specific policy, program, accommodation or other specific alleged ADA violation. See Exhibit 9, Plaintiff’s response to Defendants’ Interrogatory No. 21. To the extent that the allegations at issue are related to an accommodation for a disability, even general accommodations, they are subject to the exhaustion requirements of the PLRA. See e.g. O’Guinn v. Lovelock Corr. Ctr. 502 F.3d 1056, 1061-62 (9th Cir. 2007)(discussing plain language of PLRA requiring exhaustion of administrative remedies
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before bringing ADA and Rehabilitation Act claims); Corpening v. Hargrave, 2015 U.S. Dist. 80447, 10-11 (W. D. N.C. 2015) (same). As discussed supra, Plaintiff failed to exhaust the available administrative remedies for any requested accommodation and so his claims must be dismissed as a matter of law.
Finally, even assuming, arguendo there were a failure to accommodate the Plaintiff or a violation of the ADA, which is denied, that past failure without continuing, present adverse effects for this Plaintiff and does not constitute a basis for “a present case or controversy regarding injunctive relief.” Sims v. Marano, 2020 U.S. Dist. LEXIS 20384, 17-18 (W. D. Va. 2020)(Mem. Op.)(citing O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) in evaluating an inmate’s pro se claims that his rights were violated under the ADA and noting that, inter alia, a claim related to the denial of a prosthetic leg under the ADA – which had been previously dismissed for failure to state a claim – could not be the basis for injunctive relief when he received a prosthetic leg after the lawsuit was filed because it was a prior harm). As such because Plaintiff Baxley is no longer subject to any policy or lack of accommodation at a West Virginia Regional Jail, his claims cannot be the basis for the prospective injunctive relief sought and should be dismissed.
V. COUNT I OF THE SECOND AMENDED COMPLAINT MUST BE DISMISSED AGAINST WVDCR SINCE IT IS NOT A PERSON.
WVDCR is entitled to dismissal under Count I of the Second Amended Complaint as a matter of law because it is not a “person” subject to suit in this court under 42 U.S.C. § 1983. That section provides a remedy to parties who are deprived of protected civil rights by “persons” acting under color of any state “law, statute, ordinance, regulation, custom, or usage.” The Supreme Court in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) held that a state nor its agencies are “persons” under § 1983. The Fourth Circuit has confirmed that it is “well settled” that a state or a state agency are not “persons” as required under 42 U.S.C. § 1983. See e.g Kelly v. State, 2007
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U.S. Dist. LEXIS 95954 (D. Md. 2007) aff’d 267 F. App'x 209, 210, 2008 U.S. App. 1226 (4th Cir. 2008) (recognizing that it has been “well settled” that the state cannot be sued under 42 U.S.C. § 1983 and noting that “[a] cause of action under § 1983 requires the deprivation of a civil right by a “person” acting under color of state law.)
Court I against WVDCR clearly falls within the category of attempted § 1983 actions that cannot be brought under § 1983 because WVDCR is not a person. In similar cases, the State and its agencies have been found not to be “persons” under § 1983 and have been dismissed from suit. See Cochran v. W. Va. Reg'l Jail & Corr. Facility Auth., 2014 U.S. Dist. LEXIS 89893, at *8 (S.D. W.Va. 2014)(holding W.Va. Regional Jail and Correctional Facility Authority, the predecessor to WVDCR, is a state agency and that no § 1983 action could be brought against it) and, Black v. West Virginia, 2019 U.S. Dist. LEXIS 172020, at *10-12 (S.D. W.Va. 2019)(holding the State was entitled to dismissal because it is not a “person” subject to liability or suit under § 1983). This Court as a matter of law should dismiss WVDCR from Count I of the Second Amended Complaint.
CONCLUSION WHEREFORE, based upon the foregoing, Defendants respectfully requests that this Court order dismissing as moot the Plaintiff John Baxley, Jr.’s claims for declaratory and injunctive in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
Respectfully submitted on behalf of Defendants by: LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 James C. Stebbins, State Bar #6674
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Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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 Case 3:18-cv-01526 Document 264 Filed 07/17/20 Page 1 of 3 PageID #: 2800

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, et al.,

Plaintiffs,

v.

Civ. Act. No. 3:18cv01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

NOW COME Plaintiffs John Baxley, Earl Edmondson, Joshua Hall, Heather Reed, Danny

Spiker, Jr., and Donna Wells-Wright, by counsel, and pursuant to Federal Rules of Civil Procedure

23(a) and 23(b)(2), to move this Honorable Court to certify this proceeding as a class action.1

Based upon this motion, the complaint, and the authorities and principles discussed in Plaintiffs’

Memorandum in Support of Plaintiffs’ Motion for Class Certification, Plaintiffs ask this Court to

certify a Plaintiff class for declaratory and injunctive relief, defined as follows:

All persons who are, or who will be, admitted to a jail in West Virginia.

Plaintiffs further ask this Court to certify a Plaintiff subclass for declaratory and injunctive relief,

defined as follows:

All persons who are, or who will be, admitted to a jail in West Virginia who meet the definition of being a “qualified individual with a disability” under the Americans with Disabilities Act.

1 Amber Arnett and Eric Jones have been released from Defendants’ custody, and Defendants have moved to dismiss them from this suit. Undersigned counsel has been unable to maintain contact with said individuals since their release, and thus does not pursue the present motion on their behalf. Robert Watson has withdrawn as a named Plaintiff in this matter, although he remains a member of the putative class.
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As set forth in the attached exhibits and accompanying Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification, the named Plaintiffs meet the requirements for certification of a class under Federal Rule of Civil Procedure 23(a), including numerosity, common questions of law and fact, common claims, typicality, and that “the representative parties will fairly and adequately protect the interests of the class.” Moreover, this class is appropriate for certification under Federal Rule of Civil Procedure 23(b)(2), as the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). (See Exhibits 1 through 18, attached hereto.)
Undersigned counsel also request to be appointed as counsel for the class pursuant to Federal Rule of Civil Procedure 23(g), based upon the facts set forth in Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Class Certification, and in class counsels’ individual supporting declarations. (See Decl. of Lydia C. Milnes, attached as Ex. 19; Decl. of Jennifer S. Wagner, attached as Ex. 20; and Decl. of Rachel J. Kincaid, attached as Ex. 21.)
WHEREFORE, Plaintiffs, who bring this action to address widespread, systemic failures by Defendants to provide adequate and timely medical and mental health treatment to inmates in WVDCR’s jail facilities, respectfully request that this Court certify the class and subclass as stated above.
Respectfully submitted, JOHN BAXLEY, JR., EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, HEATHER REED, and DANNY SPIKER, JR., on behalf of themselves and others similarly situated, By Counsel:
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Case 3:18-cv-01526 Document 264 Filed 07/17/20 Page 3 of 3 PageID #: 2802
/s/ Lydia C. Milnes Lydia C. Milnes (State Bar No. 10598) Jennifer S. Wagner (State Bar No. 10639) Rachel J. Kincaid (State Bar No. 13726) Mountain State Justice, Inc. 325 Willey Street Morgantown, WV 26505 Phone: (304) 326-0188 Facsimile: (304) 326-0189 lydia@msjlaw.org jennifer@msjlaw.org rkincaid@msjlaw.org Counsel for Plaintiffs
3

Case 3:18-cv-01526 Document 279 Filed 07/17/20 Page 1 of 40 PageID #: 7716

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civ. Act. No. 3:18cv01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

This case arises from Defendants’ systemic failures to provide minimally adequate medical

and mental health care to inmates in the jail facilities operated by the West Virginia Division of

Corrections and Rehabilitations (DCR), as well as meaningful access to programs, services, and

activities for DCR jail inmates with disabilities. Defendants have been, and continue to be,

deliberately indifferent to these systemic failures. Their indifference results in an unreasonable

risk of serious harm to inmates’ mental and physical health in violation of the United States

Constitution, and the denial of access to federally-guaranteed services for inmates with disabilities

in violation of federal disability anti-discrimination laws. As set forth below, the evidence of

DCR’s complete abdication of responsibility to the inmates in its custody is well-established,

striking, and disturbing, with serious life-threatening impacts on those people who have no option

but to rely on it for care.

The named Plaintiffs have been and continue to be subjected to and harmed by Defendants’

constitutionally inadequate policies and procedures, and seek to represent a class of similarly

situated inmates housed in DCR jails to prevent future inmates from having to suffer the same

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injuries that they have suffered.1 Jail residents are at the total mercy of their jailers when they need
access to medical or mental health care or modifications due to their disabilities. Defendants’
centralized policies and procedures affect all people held in DCR’s jails, and each of these
individuals suffer the same legal violations and actual harm as the result of Defendants’ harmful
policies and practices. Plaintiffs therefore seek class-wide declaratory and injunctive relief,
including an order compelling Defendants to immediately develop and implement a plan to
provide Plaintiffs and the proposed class with (1) constitutionally adequate and timely medical and
mental health care and (2) policies and procedures to ensure inmates with disabilities have
meaningful access to DCR services, programs, and activities.
Plaintiffs seek an order certifying this case as a class action under Federal Rules of Civil
Procedure 23(a) and (b)(2). Specifically, Plaintiffs seek certification of the following class and
subclass:
(1) DCR Jail Class composed of all persons who are, or who will be, admitted to a jail in West Virginia2; and
(2) Disability Subclass composed of all persons who are, or who will be, admitted to a jail in West Virginia who meet the definition of being a “qualified individual with a disability” under the Americans with Disabilities Act (ADA)
It is necessary for this Court to certify a class in order to remedy the conditions that expose
DCR jail residents to an unreasonable risk of serious harm, and to remedy DCR’s systemic
violations of the ADA. See Helling v. McKinney, 509 U.S. 25, 35 (1993).
1 As set forth in Plaintiff’s Motion for Class Certification, Amber Arnett, Eric Jones, and Robert Watson, have effectively withdrawn from participation as class representatives. Amber Arnett was released from DCR custody on June 5, 2020, and counsel has been unable to make contact with her since that time. Mr. Jones was released from DCR custody on May 19, 2019, and has been unable to participate in a deposition. Mr. Watson remains incarcerated and a member of the putative class, but has requested to withdraw from representing the class. While these individuals no longer are seeking to represent the class, their medical records and information remains evidence in this case. 2 Plaintiffs seek to amend the class definition set forth in the Second Amended Complaint to more accurately describe the class, given that all individuals admitted to any jail in West Virginia are subjected to the same policies, procedures, and lack of oversight and accountability by the DCR with regard to their medical and/or mental health needs, including the screening for such needs.
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Plaintiffs meet the standard for class certification. Numerosity is met because the proposed DCR Jail Class consists of approximately 5,172 current inmates and untold numbers of future inmates. The proposed Disability Subclass similarly consists of approximately 2,068 current inmates and untold numbers of future inmates. Commonality is met because Plaintiffs challenge the legality of Defendants’ system-wide policies and practices, which raise common questions capable of common answers through the system-wide injunctive relief Plaintiffs seek. Typicality is met because the named Plaintiffs are all subject to the same deficient policies, procedures, and practices as the class members. The named Plaintiffs and class counsel will fairly and adequately protect the interests of the proposed class and subclass and have done so dillegently to date. Finally, class certification is warranted because Defendants have acted, and refused to act, on grounds that apply generally to the class such that final injunctive and declaratory relief is appropriate as to the class as a whole.
This case is not about the care provided to any specific inmate, and Plaintiffs do not seek relief for individual inmates. Rather, this case is about whether DCR’s system-wide policies and practice of failing to ensure adequate health care creates a substantial risk of serious harm to all DCR jail residents in violation of the Eighth and Fourteenth Amendments, and whether DCR has systemically failed to provide inmates with disabilities meaningful access to DCR programs, services, and activities by failing to put into place systems to ensure the provision of reasonable accommodations to enable such access. To address such common, systemic issues through thousands of individual inmate lawsuits would be grossly inefficient and unnecessary—and would cause untold harm and death to vulnerable people incarcerated in West Virginia jails—when the injunctive and declaratory relief requested in this matter would resolve these issues on behalf of all inmates.
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Because the named Plaintiffs, the DCR Class, the Disability Subclass, and Plaintiffs’ counsel satisfy all requirements of Federal Rule of Civil Procedure 23(a), (b)(2), and (g)(1) and (4), class certification should be granted.
I. FACTUAL BACKGROUND A. DCR controls the provision of mental and medical health care in DCR’s jails.
DCR is responsible for ensuring that “[a]ll inmates . . . have prompt access to necessary medical, dental, and psychiatric care, provided in a reasonable manner by licensed personnel.” See W. Va. C.S.R. § 95-1-14.13; see also Deposition of Debbie Hissom, Director of Correctional Health Care, at 8:9-14, 15:14-19, 32:21-24 (attached as Ex. 3). DCR employs statewide policies and procedures to regulate the delivery of health care. (Hissom Dep. 8:3-9, 15:20-24, 18:3-9, 32:11-14; Deposition of Shelby Searls, Superintendent of Western Regional Jail, at 27 (attached as Ex. 4).) DCR Commissioner, Defendant Betsy Jividen, must sign off on any changes to jail policy, including those governing the provision of health care in the facilities. (Hissom Dep. 18:10-17.) All new policies are distributed to the entire jail system and to all contracted and subcontracted entities, and must be followed throughout the system uniformly, including by the contracted medical providers. (Hissom Dep. 18:10-17; see also Deposition of Thomas Weber, CEO of PrimeCare Medical, Inc., at 197:5-12 (attached as Ex. 5); Deposition of Timothy Thistlethwaite, Medical Director of PsiMed Corrections, Inc. at 55-56
3 Upon consolidation in 2018 of the West Virginia Regional Jail Authority (WVRJA) and the West Virginia Division of Corrections into DCR, West Virginia’s Legislature directed that Title 95 of the Code of State Rules, which governed the operations of the WVRJA, would be repealed upon the Commissioner’s enactment of new policies governing all DCR facilities. The Legislature specifically provided, however, that each section within Title 95 would remain in effect until replaced by a new policy. Consequently, until a new DCR policy is enacted to replace section 95-1-14.1, it remains controlling law. W. Va. Code § 15A-3-18(b) (“All legislative rules and policies of the former Division of Corrections, the former Division of Juvenile Services, and the Regional Jail and Correctional Facility Authority shall remain effective until amended or terminated pursuant to the provisions of § 29A-3-1 et seq. of this code by the Division of Correction and Rehabilitation: Provided, That these rules shall expire on July 1, 2021, if not superseded sooner.”).
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(attached as Ex. 6).) Any training on DCR policies is conducted by one centralized person— Debbie Hissom, DCR’s Director of Correctional Health Care—and is consistent across facilities. (Hissom Dep. 19:22-24, 23:6-8, 23:24, 24:1-3.)4 DCR’s centralized policies and procedures are intended to provide essential care to inmates, but both the policies themselves and their implementation are broken.
DCR contracts with two for-profit medical vendors, PrimeCare Medical, Inc., (PrimeCare) and Wexford Health Sources, Inc., (Wexford) to fulfill its responsibility to provide medical and mental health care to inmates in the ten DCR jails.5 DCR’s obligations and expectations for these contractors are consistent across all ten jail facilities, as set forth in substantially identical contracts across facilities. (See Hissom Dep. 29:12-18, 43:18-24; Weber Dep. 26; Deposition of James Gray, Wexford Health Services Administrator for Northern Regional Jail and Correctional Complex at 129:1-8 (attached as Ex. 7).) The contractors’ own policies are required, by contract, to reflect the guidelines set forth by the National Commission on Correctional Health Care (NCCHC) and are also consistent across facilities. (See Weber Dep. 20-21, 121; Gray Dep. at 127:9-13.) Further, the contractors’ actual practices, including their failure to follow their nearly identical policies, are consistent across facilities. (See, e.g., Searls Dep. 125-26; Thistlethwaite Dep. at 24-26; Weber Dep. 2021, 26; Hissom Dep. 30:4-8; Venters Rep.; Wills Rep.) While PrimeCare and Wexford utilize
4 Training on supposedly binding policies is systematically not provided to contractor personnel. (See, e.g., Deposition of Susie Christian, PrimeCare Nurse, at 16-17, 30-31 (attached as ex. 10) (PrimeCare staff receive no training on PrimeCare or DCR policies, or on accreditation standards); Searls Dep. 105 (DCR employees receive no training on mental health); Thistlethwait Dep. 17 (PsiMed personnel receive no training on DCR policies).) 5 PrimeCare provides medical care in nine jails. Wexford provides medical care in the remaining jail. Both PrimeCare and Wexford subcontract with PsiMed Corrections, Inc., to provide psychiatric and mental health care in certain facilities. These entities agree that they are responsible for the services provided by PsiMed. (See Weber Dep. 20; Gray Dep. 22:20-24 23:1-8.) PsiMed provides care in three PrimeCare-covered jails and the one Wexford jail; however, PrimeCare’s CEO testified that the psychiatric care provided by PsiMed and the psychiatric care provided directly by PrimeCare does not meaningfully differ. (Weber Dep. 126:5-12, 127:6-10.)
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different electronic medical record (EMR) systems, the information contained in each is nearly identical.6 The EMRs create consistent inadequacies across facilities, as they are set up with the same inadequate data entry fields across facilities and contain the same inadequate triggers and work arounds regarding required next steps.7 (See, e.g., Searls Dep. 84; Venters Rep. 10-11.)
DCR’s contracts with PrimeCare and Wexford contain nearly identical terms. Notably, both contracts contain zero performance measures or metrics that the contractors are required to meet. (Report of Dr. Homer Venters, Correctional Medicine Expert, at 5-9 (attached as Ex. 1).) In addition, the contracts no meaningful enforcement mechanism by which DCR can take action against contractors if they fail to provide adequate care. (Venters Rep. 6; see also Weber Dep. 48:21-49:1 (other states impose liquidated damages for non-performance on PrimeCare, but West Virginia does not).) Without liquidated damages or penalties, there is no financial incentive for the contractors to comply with their contractual obligations to provide adequate care. (Venters Rep. 5-9; see also Report of Dr. Cheryl Wills, Correctional Psychiatry Expert, ¶ 2 (attached as Ex. 2).)
In fact, the contracts actually create financial incentives to provide substandard care by paying the contractors a flat rate for all services, regardless of inmate need8; this rate includes payment for all treatment, staffing, medical equipment, orthoses, mental health
6 PsiMed uses the EMR of the entity it subcontracts with; i.e., for Northern Regional Jail, it uses the Wexford EMR, and for the other three jails that it works in, it uses the PrimeCare EMR. (See Thistlethwaite Dep. 60:14-16.) 7 For example, neither EMR has fields in the intake screening that adequately identify whether an individual needs an accommodation for a disability. Similarly, both EMRs permit for required appointments to be “rescheduled” such that they will not show up on any search for failing to hold a timely medical appointment. (See Rep. Dr. Homer Venters, Correctional Medicine Expert, at 10-11 (attached as Ex. 1).) 8 The contract flat rate is calculated based on average daily population of the system. The contract permits the contractor to seek reimbursement for costs above $5,000 per inmate, per year, per illness or injury. (Ex. 17 at DCR 2078; Ex. 18 at DCR 2827-28).
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Case 3:18-cv-01526 Document 279 Filed 07/17/20 Page 7 of 40 PageID #: 7722
services, dentistry, outside specialist referrals, emergency care, and more.9 (Hissom Dep.
56:1-24; Weber Dep. 82:7-13; PrimeCare Contract, attached as Ex. 17; Wexford Contract
Portions, attached as Ex. 18.) DCR has hired for-profit entities to provide these services,
which touted their utilization management and reduction of costs to DCR in their successful
bids. (See Ex. 18.) Each of the contractors’ business models relies on making money, such
that the financial incentives to skimp on care loom large. (See Weber Dep. 15, 70:3-5.) This
incentive has been increased due to multiple contract extensions, which PrimeCare testifies
has limited its profit margin. (Weber Dep. 70-71:8.)
As set forth below, despite its responsibility for and control of the entire system, DCR
engages in identical lack of contractual oversight of both vendors. (Hissom Dep. 8:15-18;
Gray Dep. 127:14-17.) If it did engage in appropriate oversight, it would soon learn that its
system of care is dangerously haphazard and inadequate.
B. DCR’s engages in no oversight of the provision of medical and mental health care in its jails.
Despite DCR’s responsibility to ensure that its health care contractors provide adequate
care, it is undisputed that WVDCR conducts no oversight of those contractors. (See Hissom Dep.
9 The contract requires the contractors to provide, for the flat fee, all comprehensive services, including all medical and mental health staffing, health screenings, health appraisals, sick call, complaint triage, treatment access, maintenance of a medical observation unit, 24-hour on call physicians, infirmary, non-proprietary and electronic medical records that are integrated with the inmate management system, specialty services in the community, 24 hour access to emergency medical, dental, and mental health services, psychiatric services, psychiatric consultation, crisis intervention and evaluation by psychiatrist or psychologist, licensed mental health professionals to treat inmates on suicide watch, all lab, xray, and other ancillary services, dental services, pharmaceuticals and supplies, health education, record transfer, telemedicine, specialty clinics, administrative and clinical management, maintenance of a mental health and forensic unit, drug and alcohol detoxification, pregnancy care, physicals for inmate trustees, emergency treatment for DCR staff and visitors, regular facility inspections, medication administration, physical exams of DCR staff and officers, medical services, including immunizations for DCR staff, first aid, and infectious disease screenings, and all prosthetics, orthotics, medical equipment, and office equipment. (Ex. 17 at DCR 2065-79; see also Ex. 18.)
Notably, many of these services are not actually provided pursuant to the contract, including that the contractors do not comply with staffing and staff qualification requirements, nor do they provide access to a nonproprietary and integrated EMR. (See Wills Rep.) Due to DCR’s failure to conduct any contractual oversight, no action has been taken with regard to these failures. (See Venters Rep. 5-9.)
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43; Weber Dep. 23; Deposition of Krista Vallandingham, PrimeCare Regional Coordinator, at
105:14-106:9 (attached as Ex. 9); Gray Dep. 56-57; Venters Rep. 7-9; Wills Rep. ¶ 2.) WVDCR
requests no data from the contractors; it does not review staffing levels, deficiencies, or
qualifications; it does not track whether inmates or others raise repeated concerns about the same
issues or staff members; and it does not conduct any chart review, site inspections, or audits to
ensure that obligations are being met. (See, e.g., Hissom Dep. 50:2-8; 52:6-11; 53:2-9, 55:14-16;
59:11-24, 105:15-17, 114:22-115:3, 120:20-121:5, 130:7-17; see also Gray Dep. 54, 56-57, 76:16-
19; Weber Dep. 19, 96:4-7, 115; Searls Dep. 142; Vallandingham Dep. 125:6-13; Deposition of
Joseph Wood, Superintendent at North Central Regional Jail, at 57-58 (attached as Ex. 15);
Deposition of J.T. Binion, DCR Regional Director 2 of Prisons & Jails, at 14:16-20, 66:17-24
(attached as Ex. 11).) DCR does not know what medical services are being provided or requested.
(Hissom Dep. 54-55.) DCR does not even review the contractors’ manuals or protocols to ensure
that they meet contractual requirements, and it is not involved in the drafting of its contractors’
policies. (See Hissom Dep. 53:10-14; Weber Dep. 121:18-20.)
In addition to not conducting its own, independent audits, DCR does not review any audits purportedly conducted by the contractors or their accreditation body.10 (Hissom Dep. 79:3-6.)
10 While Wexford and PrimeCare purport to conduct internal audits, they do not provide the results of these audits to DCR, and have further refused to provide copies of the audits to either DCR or counsel for Plaintiffs in response to a subpoena in this case, thus preventing counsel and their experts from determining whether the purported audits are adequate or have identified serious deficiencies. (See, e.g., Vallandingham Dep. 39:16-18, 63:18-19; see also Def.’s Resp. to Pls.’ 3d Reqs. for Prod. of Docs. Numbers 9, 60-62 (attached as Ex. 12); Pls.’ 2d & 3d Mots. to Compel [Docs. 61, 238, 257]; Pls.’ Mot. to Compel PrimeCare [Doc. 242].) Wexford’s representative did testify that its review of inmate deaths never leads to any change in policy or practice, which is not typical and indicates an inadequate audit process in this context. (See Gray Dep. 90:21-91:3; Venters Rep. 9; Deposition of Dr. Lawrence Mendel, Defendants’ Expert Witness (to be supplemented when available).) The mortality reviews also apparently do not include engagement by DCR staff or by psychiatric clinical staff or lead to any improvements or suggestions, which is also atypical and improper. (Weber Dep. 49:3-50:6; Thistlethwaite Dep. 119-21; Venters Rep. 8-10.) PrimeCare also does not use a qualified mental health care provider to review its provision of mental health care, instead relying on a nurse with no psychiatric training. (Vallandingham Dep. 111:16-20.) Similarly, PrimeCare’s quarterly meetings do not involve any review of the substance of quality improvement audits, and the Regional Coordinator does not review and is not formally involved in the audits. (Vallandingham Dep. 29:7-11, 34.) PsiMed’s Medical Director noted that
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Indeed, DCR’s central office charged with oversight does not even attend regular meetings with the contractors. (Hissom Dep. 65-66; Thistlethwaite Dep. 27-28; Weber Dep. 53:21-24.) DCR similarly does not review any subcontracting agreements, nor does it even seek notification when a contractor subcontracts out all or some of its obligations to another corporation. 11 (Hissom Dep. 115:21-116:1, 117:8-11; Weber Dep. 115:1-3, 127:3-5.) In contrast to other states, DCR does not review or require a copy of the contractors’ audited financial statements to ensure the viability of the contractors or the system of care. (Weber Dep. 16.)
DCR’s facility level employees similarly report that—as a matter of policy—they seek no information or reporting from the medical/mental health contractors regarding inmates or even regarding the contractors’ policies. (Searls Dep. 15-16, 96:16-22; Deposition of Shawn Straughan, Superintendent of Northern Regional Jail, at 22:17-20, 27:9-11 (attached as Ex. 8).) DCR staff insist that all medical and mental health decisions are delegated without oversight or even basic knowledge to the contractors. (Searls Dep. 23-24, 75, 77, 78, 80, 85, 87, 88, 89, 90, 115, 118-21; Straughan Dep. 61:4-7; 98:15-18; Wood Dep. 34:11-13.) The Superintendents do not even know when or what medical personnel are on site at their facilities. (Searls Dep. 100-01.) Nor do they review responses from medical when they refer inmate grievances to medical staff. (Straughan Dep. 36:2-13.) DCR’s central office never reaches out to the Superintendents to check on the performance of the contractors or the provision of care in the jails. (Straughan Dep. 28:20-
PsiMed has never identified any areas in which it could improve, does not conduct internal audits, and does not track or review suicide attempts. (Thistlethwaite Dep. 117-18, 121.) 11 In keeping with the total lack of oversight by DCR, Wexford and PrimeCare require no reporting and conduct no oversight of its subcontracted agent, PsiMed. (Thistlethwaite Dep. 29, 33, 34, 36, 38-39, 58 (explaining that PsiMed engages in no reporting, no continuous quality control meetings (required by NCCHC), no review for compliance with policies or procedures, no audits other than the NCCHC audit that occurs every three years, and no tracking of inmate complaints or concerns; PsiMed also does not document when its staff is working or provide any such documentation to any other entity); see also Gray Dep. 22:20-23:8 (Wexford conducts no oversight of PsiMed at Northern Regional Jail); Vallandingham Dep. 28:18-24 (PrimeCare has no formalized interactions with PsiMed, even to coordinate care).)
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22.) As Correctional Health Expert Dr. Homer Venters explains, DCR’s policy comprises an
“inadequate and deficient approach to maintaining the standards of care for correctional patients.” (Venters Rep. 7.) Dr. Venters finds that DCR demonstrates “a gross lack of understanding of the core services that [it] stands in oversight of” and that its contracts and practices “reflect a lack of interest by the DCR in . . . promot[ing] quality in the correctional health services.” (Venters Rep. 8.) Dr. Venters explains that the basic elements of creating an appropriate correctional health care system include the state entity’s development and maintenance of “quality assurance, quality improvement, patient relations (grievances) and mortality reviews,” through clear policy, structure, data, and review by qualified independent professionals. (Venters Rep. 8-9.) DCR undisputedly lacks any of these processes. (Venters Rep. 5-9.) As the result of this failure, during the many years in which DCR has maintained the medical services contracts with the two contractors, DCR has failed to identify even one area of concern or area for improvement. (Venters Rep. 8.) Dr. Venters explains, “[f]ailure to identify areas for improvement during mortality reviews or other audits or review is atypical and indicates an inadequate process.” (Venters Rep. 9.) Dr. Venters concludes that “they DCR system has abdicated its own responsibility in oversight of the quality of care provided by its contract venders,” resulting in significant harm to the individuals in its custody and care. (Venters Rep. 9.)
This lack of oversight is inconsistent with standard practice, results in DCR’s failure to identify deficiencies in medical and mental health delivery, and directly leads to poor health outcomes for inmates. (Wills Rep. ¶¶ 2-4; Venters Rep. 5-9.) Through its utter lack of oversight, DCR has, by routine practice and policy, authorized its contracting agents to delay and refuse to provide necessary and in many cases life-saving treatment to patients. The harm is immeasurable,
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and the care is constitutionally deficient.
C. DCR’s policies, procedures, and lack of oversight of the provision of medical and mental health care in its jails result in constitutionally deficient medical and mental health care for jail residents.
DCR’s policy of no oversight of its contractors results in system-wide constitutionally
deficient medical and mental health care for inmates in DCR’s jails. As correctional medicine
expert Dr. Homer Venters and correctional psychiatry expert Dr. Cheryl Wills conclude from their
review of patient medical records, policies and procedures, the governing contracts, and relevant
testimony, the deficiencies range from “woefully deficient” psychiatric and mental health care, to
failures in the intake process, inadequate medication delivery, lack of access to medical
professionals and treatment, failures in chronic care, lack of care coordination, and lack of
appropriate emergency care.12 (Venters Rep.; Wills Rep.)
As noted by Dr. Wills, Defendants routinely deny access to psychotropic medications and
appropriate mental health treatment. Defendants systematically fail to provide treatment by
qualified mental health professionals for inmates with severe mental health conditions, and instead
conduct assessments and “treatment” through individuals who lack the knowledge, expertise, and
education to provide appropriate care. (Wills Rep. ¶ 1.) Dr. Wills further found that DCR
systematic failed to provide care by qualified professionals with the ability to prescribe and
12 Defendants have thus far refused to produce a sampling of medical records for all of its jail facilities. (See Defs.’ Resp. to Mot. to Compel [Doc. 251].) Defendants have, however, produced hundreds of grievances submitted by inmates in jails that confirm the system-wide failures to provide adequate mental health and medical care as experienced and confirmed by the medical records that have been reviewed. Neither Defendants nor their contractors track trends in inmate grievances. (Wood Dep. 57-58; Binion Dep 14:16-20, 66:17-24; see also Gray Dep 102:4-18.) However, Plaintiffs are prepared, if necessary, to produce a comprehensive database of the grievances provided. Plaintiffs present a sampling here for the sake of efficiency. (See, e.g., Grievance Samples, attached as Ex. 16, at DCR 7596, 7641-42, 8503 (lack of mental health treatment at Eastern Regional Jail); DCR 7640, 7649-50, 7525, 7527, 7535, and 7536 (lack of mental health treatment at Southwestern Regional Jail); DCR 7528, 7550, and 7547 (lack of mental health treatment at South Central Regional Jail); DCR 7192 (lack of mental health medication at Southern Regional Jail); DCR 7244, 7248, 7250, 7251 (lack of medical care and medications at South Western Regional Jail); DCR 7243 (lack of medical care during detox at Potomac Highlands Regional Jail); DCR 7131, 8502 (lack of medical treatment and medication at Eastern Regional Jail); DCR 7121, 7229, 7253 (lack of medications at South Central Regional Jail); DCR 7193, 7278 (lack of medication at Southern Regional Jail.)
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evaluate psychiatric medications, created no individualized treatment plans (which are required by the standard of care), failed to provide timely psychiatric follow up care, provided wholly inadequate care for individuals on and after suicide watch, and permitted unqualified individuals to release inmates from suicide watch, with disastrous results. (Wills Rep. ¶ 5.) Indeed, according to DCR Medical Director Hissom, Defendants have no policy regarding the timeframe in which a person presenting with mental health symptoms at intake must be seen by a mental health provider, nor do they have a policy setting forth when a person placed on suicide watch will be seen by a mental health provider. (Hissom Dep. 101:13-103.) In fact, PsiMed—the psychiatric care provider at several facilities—reports that it has no responsibilities with respect to suicide watch at all, but rather it is only involved with inmates on suicide watch on a case-by-case basis; Defendants similarly have no policy about referring inmates to PsiMed who are engaged in self-harm. (Thistlethwaite Dep. 105-106.) As the result of these system-wide deficiencies, inmates are denied access to psychotropic mediations and mental health treatment, resulting in severe injury and risk of death. (Wills Rep.; Venters Rep. at 19-20 and throughout.)
DCR’s system further fails to adequately coordinate care between facilities, staff, and agencies. For instance, in contrast to contractual requirements, DCR permits the use of two different proprietary electronic health records, which do not integrate with one another or with DCR’s inmate records. (Wills Rep. ¶ 3.a; Venters Rep. 10-11.) This disrupts continuity of care for inmates as they transfer between facilities. (Wells Rep. ¶ 3.) The EMRs’ endemic inadequacies further make coordinated and adequate care impossible, as they fail to include basic initial assessment data regarding disabilities and medical and mental health needs. (Venters Rep. 10-11.) DCR’s medical and mental health staff further fail to coordinate care; Defendants maintain no policy or process for deciding whether to obtain a medical release from inmates in order to
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obtain their complete medical history or even whether to look at prior records of inmate from the current contractor. (See Gray Dep. 22:20-23:8, 147:2-5; Weber Dep. 133:8-11; see also, e.g., Vallandingham Dep. 28:18-24 (PrimeCare has no formalized interactions with PsiMed, even to coordinate care).)
As Dr. Venters explains, “Coordination of care extends to communication between security, mental health, and medical staff,” which is wholly lacking in the DCR system. (Venters Rep. 11.) As a rule, the contractors do not advise DCR of an inmate’s psychiatric or medical condition. (See Searls Dep. 111-12; Thistlethwaite Dep. 96-97; Deposition of Susie Christian, PrimeCare Nurse, at 24:10-21 (attached as Ex. 10).) DCR similarly does not request this information or consult with the contractors prior to placing an inmate in control-based restraints or using chemical agents or other force on inmates, even when an inmate has medical conditions that would place her at high risk from such a use of force. (Vallandingham Dep. 88-90; Straughan Dep. 107:21-23; Gray Dep. 39:2-19; 41:1-18; Wood Dep. 84.) No one—neither DCR nor the contractors—notifies PsiMed when an inmate is placed in restraints. (Thistlethwaite Dep. 105.) And Defendants have no policies regarding the use of force on inmates with mental or medical health diagnoses, and maintain no policies or procedures for how correctional officers should interact with inmates in mental health crisis. (Searls Dep. 102-104.) This lack of communication has grave consequences. Dr. Venters explains that increased morbidity and mortality is associated with the use of chemical agents, such as pepper spray; restraints; and prolonged solitary confinement for individuals with severe mental health conditions; similarly individuals with COPD and asthma are at increased risk from the use of pepper spray. (Venters Rep. 11-12, 15-16; Wills Rep. ¶ 6); see also Thomas v. Bryant, 614 F.3d 1288, 1315 (11th Cir. 2010).
Defendants’ intake system is wholly deficient. At intake, through the use of system-wide
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deficient forms and screening instruments, Defendants fail to identify serious health needs for follow-up—a primary purpose of conducting intake screenings and assessments. (Venters Rep. 10-11.) Defendants further fail to timely conduct necessary assessments and referrals for intellectual and developmental disabilities, mental health services, medications, or chronic care treatment. (Venters Rep. 12, 19.) Defendants do not conduct necessary medical screenings for reported medical history; and they do not ensure that medications are prescribed for existing medical conditions. (Venters Rep. 12-13.) Defendants have no set timeframe for someone who presents at intake with a medical need that is not an emergency to see a medical doctor for treatment, nor is there an established timeframe for a mental health consultation for an individual with psychiatric symptoms. (Hissom Dep. 7-19, 101:13-14, 137:4-18.) Dr. Venters further notes that, as a matter of practice, “DCR routinely halts life-saving medications for people who are placed into a detoxification protocol,” which is “extremely dangerous” and increases risk of morbidity and mortality; DCR further conducts detoxification in crowded cells without proper bedding, making it “exceedingly difficult to detect . . . who is experiencing severe, even lifethreatening complications of detoxification.” (Venters Rep. 13.) These failures are systematic and lead to substantial risk and harm to inmates. (See Venters Rep. 10-13, 20; Wills Rep. ¶ 8.)
Defendants’ medication delivery system is also inadequate. Defendants deny access to medications on intake, disrupt medications without notice, provide inconsistent access to purportedly prescribed medications, and fail to prescribe and deliver medications upon intake. These practices result in “clinical worsening of the health problems being treated.” (Venters Rep. 13; see also Wills Rep. ¶¶ 7, 8; Venters Rep. 13-19.) Similarly, Defendants routinely deprive inmates of access to treatment for chronic medical conditions, such as heart disease, diabetes, asthma, and HIV, despite that the basic standard of care requires consistent chronic care services.
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(Venters Rep. 19.) DCR similarly simply does not ensure that doctor or dental orders are complied
with, that medical, dental, and mental health appointments are timely scheduled or kept, that
requests for medical care are timely responded to, or that the process for making a medical request
is properly explained or made available to inmates.13 (See Venters Rep. 19-20.)
Despite the facially obvious nature of these deficiencies, through its policy of no oversight
and no corrective action, DCR allows these system-wide failures to continue unaddressed,
resulting in substantial harm to inmates in its custody, control, and care. (Wills Rep. ¶ 2; see also
Venters Rep. 5-9.) Dr. Venters concludes:
Taken together, these patient records reveal a lack of access to basic health services for detained people, starting from the intake into DCR facilities and extending throughout their incarceration. Without use of basic quality metrics and other standard elements of correctional health oversight, WVDCR has abdicated its clear role as the responsible party in ensuring the quality of care from the vendors that provide health services. This lack of oversight is unacceptable in both community and correctional health settings. It appears that the deficiencies in the care provided to these patients represent systematic problems created and permitted by the DCR’s abdication of its responsibility to oversee and ensure the quality of care in its jail system.
(Venters Rep. 21.) Similarly, Dr. Wills concludes:
A review of the records has determined that the mental health care, especially the psychiatric care, provided in West Virginia DCR jails is woefully deficient in several areas, does not comport with NCCHC Standards, falls below the standard of care and has resulted in unnecessary physical and emotional harm to many detainees. There is a reasonable likelihood that if the chart review continues, the number of deficiencies will increase, as the problem is pervasive in DCR.
(Wills Rep. at 3-4.)
D. DCR exercises complete control over disability-related accommodations in its jails and has utterly failed to implement any policy to ensure that inmates with disabilities receive the accommodations to which they are entitled.
As the preliminary discovery in this case clearly demonstrates, DCR—and its
13 DCR’s own failure to properly staff its facilities further interferes with patient care, including creating substantial delays in providing medical and dental care. (Weber Dep. 194:3-20, 195:11-24.)
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contractors—has fully abdicated its responsibilities under the Americans with Disabilities Act, 42 U.S.C. § 12132. As a result, DCR is actively and on an ongoing basis discriminating against legally-disabled inmates in its custody. It is well settled that the ADA applies to inmates in state jail and prison facilities. 28 C.F.R. § 35.152; Penn. Dept. of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952, 1956 (1998). Moreover, the duty to provide reasonable accommodations and avoid discrimination explicitly extends to contractors of state correctional agencies, such as PrimeCare and Wexford. See 28 C.F.R. § 35.152. As a result of both DCR’s and its contractors’ complete lack of ADA policies, DCR is violating the rights of inmates with disabilities, including the named Plaintiffs and those in the putative Disability Subclass.
The evidence in this case—including testimony from DCR’s Director of Correctional Health, multiple jail Superintendents, and the medical contractors, as well as written admissions from DCR—demonstrates conclusively that DCR makes no attempt to provide reasonable accommodations to ensure that inmates in its custody are able to receive the “benefits of the services, programs, or activities” of the jails, as it is required to do. 28 C.F.R. § 35.152(b)(1). DCR does not track the number of inmates with disabilities housed in its jails. (D’s Resp. to 3rd Irrogs & RFPs No. 35.) DCR does not maintain or enforce any policy to identify inmates with disabilities, to create or ensure accommodations or modifications, or to notify staff of any such needs. (See Straughan Dep. 83, 115:22-24; Vallandingham Dep. 94:19-95:3; Searls Dep. 110-11; D’s Resp. to 3rd Irrogs & RFPs No. 51, 52, 53.) Indeed, DCR has absolutely no idea of how many inmates in its facilities constitute qualified individuals with disabilities who need accommodations, as DCR does not collect information nor generate reports regarding individuals who cannot participate in the jails’ activities, services, and programs. (See Straughan Dep. 88:20-23; Thistlethwaite Dep. 75; Vallandingham Dep. 129:1-
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12, 129:15-130:15, 137:23-138:18; Weber Dep. 150:1-17.) Nor does DCR maintain or track inmate requests for disability accommodations or the provision of those accommodations. (D’s Resp. to 3rd Irrogs & RFPs No. 37, 57, 58, 74.) It is therefore unsurprising that DCR has not complied with its obligations to provide information to inmates regarding their rights under the ADA, see 28 C.F.R. § 35.106; appoint a designated responsible employee for ADA compliance and ensure that that person has an appropriate job description and carries out their duties, see id. at § 35.107(a)14; or implement reasonable policies to ensure that inmates with disabilities are appropriately housed, see id. at § 35.152(b)(3). (See Email from Defs.’ Counsel (June 22, 2020) (noting that Defendant has “no responsive documents” with regard to these issues) (attached as Ex. 13); Defs.’ Resp. to 3d Mot. to Compel at 15 (“Defendant has no responsive documents.”) [Doc. 251].)15
As Director Hissom testified, DCR maintains no policy or procedure to ensure that necessary medical assistive devices or protheses, such as hearing aids, false teeth, or even wheelchairs, are timely provided—or even provided at all—to individuals who need them to engage in life in jail. (Hissom Dep. 97:2-14, 98:2-12, 103:19-24; D’s Resp. to 3rd Irrogs & RFPs No. 45, 46, 47, 48.) While DCR contends that accommodations are handled on a caseby-case basis, it is clear that this alleged method is ineffective, given that Defendant can produce no documentation of any accommodation that it has provided, no policy by which to even make such a determination, and no training on staff members’ obligations. (See D’s
14 While Defendants assert that they have designated a responsible employee, they have not been able to identify that individual in discovery and attest that they have no documents reflecting or relating to that appointment, such as a job description or a communication advising inmates or staff of the existence or identity of the employee. (See Email from Defs.’ Counsel (June 22, 2020) (noting that Defendant has “no responsive documents” with regard to these issues); Defs.’ Resp. to 3d Mot. to Compel at 15 (“Defendant has no responsive documents.”) [Doc. 251].) 15 To the extent Defendants attempt to assert that WVRJA Policy and Procedure Statement 13007 (1997), “Special Medical Programs,” produced in discovery under protective order, addresses its obligations under the ADA, such procedure is wholly deficient to meet ADA requirements for a public entity, does not mention nor cite to the ADA and in certain respects actually conflicts with the requirements imposed by the ADA.
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Resp. to 3rd Irrogs & RFPs No. 37, 45, 51, 52, 53, 57, 58, 74.; Straughan Dep. 83, 88:20-23, 115:22-24; Vallandingham Dep. 94:19-95:3; Searls Dep. 110-11; Thistlethwaite Dep. 75; Vallandingham Dep. 129:1-12, 129:15-130:15, 137:23-138:18; Weber Dep. 150:1-17; Email from Defs.’ Counsel (June 22, 2020) (noting that Defendant has “no responsive documents” with regard to these issues); Defs.’ Resp. to 3d Mot. to Compel at 15 (“Defendant has no responsive documents.”) [Doc. 251].) Indeed, Defendants’ own staff and contractors report that they do not know when an accommodation might be required, or what that might entail. (See id.)
DCR’s contractors likewise fail to even attempt compliance with the ADA—likely because they do not believe that they are required to. The CEO of PrimeCare—who is also an attorney—testified “I don’t think [the ADA] is applicable to correctional facilities” in response to the question, “Do you have a process for identifying inmates who need disability accommodations?” (Weber Dep. 151:4-6 (emphasis added).)16 The Medical Director for PsiMed similarly testified, when asked whether PsiMed provides accommodations for disabled inmates to ensure their ability to engage in mental health care, “We don’t provide that [accommodations].” (Thistlethwaite Dep. 75 (emphasis added).) And Wexford has confirmed that it has no meaningful disability policies or documents. (D’s Resp. to 3rd Irrogs & RFPs at No. 25, 28, 29, 33 and 38 (attached as Exhibit 12).) The failures of DCR’s contractors is unsurprising, given that DCR itself has no policies or procedures or other mechanisms designed to ensure compliance with ADA standards by its contractors. (Email
16 Confirming that PrimeCare does not appropriately identify and track inmates with disabilities, PrimeCare’s Regional Coordinator stated that “special needs patients” are purportedly tracked by Health Services Administrators in a separate log that is not contained in the EMR, and is only kept for the purposes of passing the NCCHC audit. (Vallandingham Dep. 129:15-1300:15.) A PrimeCare nurse working at Western Regional Jail confirmed that the special needs logs were not utilized, testifying that she was not aware of what a “special health needs patient” was or what that would entail. (Christian Dep. 22:24-23:1.)
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from Counsel for Defendants at 3.) Indeed, the contractors’ intake forms further are designed so that neither the
contractors nor DCR can easily identify, track, or accommodate individuals with disabilities. These screening forms capture no information about many types disabilities and necessary accommodations, including basic disabilities such as hearing impairments. (See Vallandingham Dep. 136:2-12; Venters Rep. 10-11.) Moreover, even if the EMR did track disabilities, its contents are by design not communicated to DCR staff, such that DCR staff would have no knowledge with which to create an appropriate modification. (See Hissom Dep. 105:15-17, 138:16-24; Christian Dep. 24:10-21; Vallandingham Dep. 94:19-95:3; Straughan Dep. 83, 84:1-4115:22-24; 116:1.)
This uniform lack of policies or procedures to ensure or even address ADA compliance directly results in DCR’s utter and complete failure to accommodate individuals with disabilities, resulting in across-the-board discrimination against said individuals, who are not provided with basic modifications to enable them to effectively participate in jail life, such as to accommodate hearing loss, learning disabilities, sight impairment, speech impairments, and inability to read or write. (See, e.g. Venters Rep. 10-11; Grievances at DCR 7673 (refusal to provide glasses at Potomac Highlands Regional Jail); DCR 7714 (same, at South Central Regional Jail); DCR 7920 (same, at lack of glasses after they were taken from her at Southern Regional Jail); DCR 8638 (same, at Eastern Regional Jail); Straughan Dep. 85-86, 111:10-13; Thistlethwaite Dep. 74, 75, 106.) Inmates with mental health needs are routinely placed in restrictive settings, seclusion, and restraints, rather than being provided accommodation of basic mental health care. (See Venters Rep.; Wills Rep.)
In short, as a matter of policy, DCR and its contractors have failed and refused to take
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any action to comply with the ADA, such that all members of the Disability Subclass are harmed.
II. ARGUMENT A. The Governing Legal Standards for Plaintiffs’ Claims
Plaintiffs’ claims are based on violations of the Eighth and Fourteenth Amendments to the United States Constitution, and the Americans with Disabilities Act (ADA).
1. Deliberate Indifference (14th Amendment & 8th Amendment) The Eighth Amendment’s Cruel and Unusual Punishment Clause governs constitutional claims brought by convicted inmates while the Fourteenth Amendment’s Due Process Clause governs similar claims brought by pretrial detainees. See Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). Because DCR’s jails hold both convicted inmates and pretrial detainees, both standards are applicable here. The Eighth Amendment is violated when prison officials, acting with “deliberate indifference,” expose inmates to “a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). In a case seeking only injunctive relief, it is the risk itself that violates the Eighth Amendment; the prisoner need not await bodily injury before seeking relief. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition.”). A prison official acts with deliberate indifference when she “knows of and disregards an excessive risk to inmate health or safety[.]” Farmer, 511 U.S. at 837. In class actions challenging a prison’s healthcare systems, “systemic deficiencies can provide the basis for a finding of deliberate indifference.” Postawko v. Missouri Dep’t of Corr., No. 2:16-CV-04219-NKL, 2017 WL 3185155, at *7 (W.D. Mo. July 26, 2017), aff’d, 910 F.3d 1030 (8th Cir. 2018) (quoting Harris v. Thigpen,
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941 F.2d 1495, 1505 (11th Cir. 1991)). Deliberate indifference to inmates’ health needs may be shown “by proving that there are such systemic and gross deficiencies in . . . procedures that the inmate population is effectively denied access to adequate medical care.” Id. (internal citations and quotations omitted); see also Brown v. Plata, 563 U.S. 493, 505 at n.3 (2011) (“Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill inmates in California to ‘substantial risk of serious harm’[.]”).
Although the case law setting forth the standard for a deliberate indifference claim for a pretrial detainee incorporates standards arising from Eighth Amendment claims, complaints regarding the conditions of a pretrial detainee’s confinement are not measured against the standards of the Eighth Amendment. As the Supreme Court has found, the state is without the “power to punish with which the Eighth Amendment is concerned [unless] . . . it [first] secured a formal adjudication of guilt in accordance with due process of law.” Lyons v. Powell, 838 F.2d 28, 29 (1st Cir. 1988) (quoting Ingraham v. Wright, 430 U.S. 651, 671-672 (1977)). Rather, the Due Process Clause of the Fourteenth Amendment provides the appropriate standards for the conditions of pretrial confinement. Id. (citation omitted). Under this standard, conditions that amount to punishment of the detainee deprive the detainee of his liberty without due process of law. Lyons, 838 F.2d at 29 (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979). To determine whether a condition amounts to a punishment,
[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. (citation omitted). Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].
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Id. at 30 (quoting Bell, 441 U.S. at 538). Accordingly, “[i]f a restriction appears to be unrelated to
a legitimate governmental objective, and is, for example, arbitrary or purposeless, then a court may infer that it is intended to be punishment.” Id. at 29 (citing Bell, 441 U.S. at 539).17
2. Americans with Disabilities Act
Pursuant to Title II of the ADA, a “qualified individual with a disability” cannot, “by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a); see also 28 C.F.R. § 35.152(b)(1)
(specifically applying this mandate to correctional facilities). Accordingly, the ADA requires
public entities, including jails, to “make reasonable modification in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the basis of
disability” unless the such modifications would fundamentally alter the nature of the service,
program, or activity provided by the public entity. 28 C.F.R. § 35.130(b)(7)(i).
ADA claims based on a failure to make reasonable accommodations are “framed in
terms of the failure to fulfill an affirmative duty—the failure to reasonably accommodate the
disabled individual’s limitations.” Cotton v. Douglas Cty. Dep’t of Corr., No. 8:16-cv-153,
2016 WL 5816993, at *5 (D. Neb. Oct. 5, 2016) (quoting Peebles v. Potter, 354 F.3d 761,
17 This Court recently addressed the relationship between claims arising under the Eighth and Fourteenth Amendments:
As the Fourth Circuit has explained, “[w]hile a convicted prisoner is entitled to protection only against ‘cruel and unusual’ punishment, a pretrial detainee, not yet found guilty of any crime, may not be subjected to punishment of any description.” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (citing Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)) (internal citations omitted). Nevertheless, courts often look to the Eighth Amendment when considering claims by pretrial detainees because they can be afforded no less protection than convicted prisoners. See Young v. City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001) (stating that “[p]retrial detainees are entitled to at least the same protection under the Fourteenth Amendment as are convicted prisoners under the Eighth Amendment. Thus, deliberate indifference to the serious medical needs of a pretrial detainee violates the due process clause.”) (footnote and citations omitted). Hammonds v. Wolfe, et al., Case 3:18-cv-01377, 2020 WL 1243609 at * 3 (S.D.W. Va. Mar. 13, 2020).
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767 (8th Cir. 2004)). For inmates who are qualified individuals with disabilities, a reasonable accommodation must provide meaningful and effective access to jail services, activities, and programs. Wright v. NY State Dep’t of Corr., 831 F.3d 64, 73 (2d Cir. 2016) (citing Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).)
Because of the unique nature of correctional facilities, in which staff control nearly all aspects of inmates’ daily lives, most everything provided to inmates is a public service, program, or activity, including, but not limited to: eating, showering, toileting, communicating with those outside of DCR by mail and telephone, exercising, safety and security, DCR’s administrative, disciplinary, and classification proceedings, medical, mental health, and dental services, and programmatic classes. See 28 C.F.R., Pt. 35, App. A (U.S. Department of Justice Guidance, explaining that “correctional facilities are unique facilities under title II” because inmates “cannot leave the facilities and must have their needs met by the corrections system,” which “include, but are not limited to, proper medication and medical treatment, accessible toilet and shower facilities, devices such as a bed transfer or a shower chair, and assistance with hygiene methods for inmates with physical disabilities”); Yeskey, 524 U.S. at 210 (“Modern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the inmates.…”).
In the correctional context, courts have held that “[b]ecause the regulations implementing the ADA require a public entity to accommodate individuals it has identified as disabled, 28 C.F.R. § 35.104, some form of tracking system is necessary” to enable a correctional system to comply with the Act.” Armstrong v. Davis, 275 F.3d 849, 876 (9th Cir. 2001) (abrogated on other grounds by Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141 (2005)). DCR is further required to
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ensure that inmates with disabilities are housed in “the most integrated setting appropriate to the needs of the individuals” and in cells “with the accessible elements necessary to afford the inmate access to safe, appropriate housing.” 28 C.F.R. § 35.152(b)(2)-(3). As an employer of over fifty individuals, DCR must additionally have a “designated responsible employee for ADA compliance,” id. at § 35.107(a), and must provide information about inmates’ rights under the ADA to all inmates. Id. at § 35.106.
B. The Legal Standard for Class Certification “A decision to certify a class is far from a conclusive judgment on the merits of the
case.” Postawko v. Missouri Dep’t of Corr., 910 F.3d 1030, 1037 (8th Cir. 2018) (citing In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) (internal quotations omitted)). For that reason, “Rule 23 does not give district courts a ‘license to engage in freeranging merits inquiries at the certification stage[.]’” See EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013)). Courts are not permitted to consider the merits of plaintiffs’ case in ruling on a motion for class certification. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 428 (4th Cir. 2003). The court’s “primary task is not to determine the final disposition of a plaintiff’s claims, but instead to examine whether those claims are appropriate for class resolution.” Id.; see also Amgen Inc., 568 U.S. at 466 (“Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”).
For the Court to certify a class, Plaintiffs must satisfy the four requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—and show that the class fits within at least one of three categories of class actions listed under Rule 23(b).
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Fed. R. Civ. P. 23; see also Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir.), cert. denied, 140 S. Ct. 676, 205 L. Ed. 2d 440 (2019). “Rule 23 [also] contains an implicit threshold requirement that the members of a proposed class be ‘readily identifiable.’ EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014). The DCR Jail Class and the Disability Subclass satisfy the explicit and implicit requirements of Rule 23(a) and meet the requirements of Rule 23(b)(2) and, as such, should be certified.
C. Plaintiffs, the Proposed Class, and Proposed Subclasses Satisfy the Requirements of Rule 23(a). As a threshold matter, the proposed class and subclass here satisfy the implicit requirement
from Rule 23 of ascertainability. A class definition is sufficient if it is administratively feasible for the court to determine whether a particular individual is a member of the class, based on objective criteria, without extensive and individualized fact-finding or mini-trials. See Charles Alan Wright & Arthur R. Miller, 7A Federal Practice & Procedure § 1760 (3d ed. 2020 update) (“The proposed class definition must not depend on subjective criteria or the merits of the case or require an extensive factual inquiry to determine who is a class member.”); see also Manual for Complex Litigation, Fourth (2004), Section 21.222, at 270 (“The definition must be precise, objective, and presently ascertainable. . . . An identifiable class exists if its members can be ascertained by reference to objective criteria. . . A class may be defined to include individuals who may not become part of the class until later.”).
Plaintiffs propose defining the class in the precise, objective manner required: All persons who are, or who will be, admitted to a jail in West Virginia. Plaintiffs additionally propose a subclass, defined in the following precise, objective manner: All persons who are, or who will be, admitted to a jail in West Virginia who meet the definition of being a “qualified individual with a disability” under the ADA.
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The definitions appropriately restrict the boundaries of the class to those who have suffered or who imminently face irreparable harm as a result of the Defendant’s failure to provide timely appropriate medical and mental health treatment upon admission to jail. The class as defined includes each of the named Plaintiffs and is appropriate for class certification.
1. The proposed DCR Jail Class and Disability Subclass are sufficiently numerous.
The proposed DCR Jail Class and Disability Subclass satisfy Rule 23(a)(1)’s numerosity requirement, as they are each “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). A class or subclass with “40 or more members raises a presumption of impracticability based on numbers alone.” William Rubenstein, Newberg on Class Actions § 3:12 (5th ed. June 2020 Update). Courts have routinely found that numerosity is satisfied where, as here, the proposed class comprises current and future inmates who seek only declaratory and injunctive relief. See Postawko, 910 F.3d at 1037-1038 (affirming certification of a class of “at least 2,000” inmates with Hepatitis C); Dockery v. Fischer, 253 F. Supp. 3d 832, 853 (S.D. Miss. 2015), petition for appeal pursuant to Rule 23(f) denied, No. 15-90110, slip op. (5th Cir. Nov. 2, 2015) ( “joinder would not be practical in this case because the population at [the prison] is subject to change as inmates are transferred into and out of that facility.”); Scott v. Clarke, 61 F.Supp.3d 569, 584 (W.D. Va. 2014) (“With approximately 1,200 women prisoners housed at FCCW who are subject to its medical care system, the proposed class is sufficiently large, on its face, to satisfy the Rule 23(a)(1) “numerosity” criterion.”).
The proposed DCR Jail Class is sufficiently numerous that joinder of all members would be impractical and infeasible. The DCR Jail Class consists of “All persons who are, or who will be, admitted to a jail in West Virginia.” This putative class is easily ascertainable, but
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membership in it changes daily as individuals enter and leave the DCR system. The average daily population of West Virginia jails in fiscal year 2019 was 5,172. See FY2019 Annual Report 45, WV DCR, https://dcr.wv.gov/resources/Documents/FY2019%20ANNUAL %20REPORT%20WVDCR.pdf. A total of 47,051 individuals were admitted to West Virginia jails during fiscal year 2019. Id. at 44. Each of the over 5,000 inmates in WVDCR’s jails are subject to the same systemwide policies and practices challenged in this lawsuit. (See supra Section I.) As a result, the DCR Jail Class includes the approximately 5,000 current inmates in DCR’s jails and an untold number of future inmates, and clearly satisfies the numerosity requirement.
The proposed Disability Subclass is also sufficiently numerous. The Disability Subclass consists of “all persons who are, or who will be, admitted to a jail in West Virginia who meet the definition of being a ‘qualified individual with a disability’ under the ADA.” While these individuals can, and should, be readily identified, Defendants do not maintain a record of inmates with disabilities in DCR’s jails. As the result, it is currently impossible to know with certainty the total size of the Disability Subclass. However, the most recent nationwide inmate survey indicated that 39.9% of inmates in jails across the country reported having a disability in 2011-2012. See Disabilities among Prison and Jail Inmates, 2011-2012, U.S. Dept. of Justice (Dec. 2015), https://www.bjs.gov/content/pub/pdf/dpji1112.pdf. Using this predictive statistic, on any given day, one could expect that approximately 2068 inmates in West Virginia jails has a disability. However, West Virginia has a dramatically higher rate of disabilities in its general population than the U.S. average—39.2% of West Virginians have a disability, compared with 25.6% of adults nationwide. See Disability & Health U.S. State Profile Data: West Virginia, Centers for Disease Control, https://www.cdc.gov/ncbddd
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/disabilityandhealth/impacts/west-virginia.html. As a result, it is likely that the number of inmates in West Virginia jails with a qualifying disability dramatically exceeds the conservative estimate of 2068 based on nationwide data. These numbers are more than enough to satisfy numerosity.
2. The commonality requirement of Rule 23(a)(2) is satisfied because the claims of the class and subclass present common issues of fact and law that are capable of common resolution.
To meet the commonality requirement, there must be “questions of law or fact common to the class,” Fed. R. Civ. P. 23(a)(2), and class members must “have suffered the same injury,” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal citation and quotation marks omitted). “To satisfy Rule 23(a)(2), plaintiffs must show their claims involve a common question or contention ‘of such a nature that it is capable of class-wide resolution— which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Postawko, 910 F.3d at 1038 (quoting Sandusky Wellness Ctr., LLC v. Medtox Scientific, Inc., 821 F.3d 992, 998 (8th Cir. 2016)). What matters is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (citations and emphasis omitted).
Differences among class members with respect to the specific incidents of inadequate health care or disability discrimination that they have suffered do not undermine commonality. See Postawko, 910 F.3d at 1039 (quoting Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“although a presently existing risk may ultimately result in different future harm for different inmates . . . every inmate suffers exactly the same constitutional injury when he is exposed to a single . . . policy or practice that creates a substantial risk of serious harm”) (emphasis added)); Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (abrogated
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on other grounds by Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141 (2005)) (rejecting defendant’s argument that class was improperly certified in prison case alleging several forms of systemic disability discrimination). Furthermore, it is not necessary that all questions be common. Ebert v. General Mills, Inc., 823 F.3d 472 (8th Cir. 2016) (reaffirming that “a single common question ‘will do’ for purposes of Rule 23(a)(2).”); Dukes, 564 U.S. at 359 (“We quite agree that for purposes of Rule 23(a)(2) even a single common question will do.”) (internal quotation marks and alterations omitted).
Importantly, “the commonality element is more easily established in proposed class actions seeking injunctive or declaratory relief . . . . Indeed, suits for injunctive relief by their very nature present common questions of law and fact.” Scott v. Clarke, 61 F.Supp.3d 569, 585 (W.D. Va. 2014) (quotations omitted). In civil rights cases, “commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members,” Armstrong, 275 F.3d at 868, even if the challenged policy or practice will affect individual class members in different ways. See, e.g., Postawko, 910 F.3d at 1038-1039 (finding commonality satisfied where “all class members share the common question of whether Defendants’ policy or custom . . . constitutes deliberate indifference to a serious medical need” and while the “physical symptoms eventually suffered by each class member may vary . . . the question asked by each class member is susceptible to common resolution.”) (internal quotation marks and alterations omitted); Braggs v. Dunn, 317 F.R.D. 634, 656 (M.D. Ala. 2016) (finding commonality “because being subjected to a substantial risk of serious harm is an actionable constitutional injury, even when a prisoner’s physical or mental condition has not yet been detrimentally impacted.”).
a. DCR Jail Class
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Common questions capable of common answers suffuse this entire lawsuit. DCR is solely responsible for the provision of medical and mental health care to inmates in its custody. W. Va. C.S.R. § 95-1-14.1. As detailed in Section I, supra, Plaintiffs have identified multiple systemic deficiencies in DCR’s policies and practices, which place the named Plaintiffs and the proposed DCR Jail Class at substantial risk of serious harm. Postawko, 910 F.3d at 1038 (whether a policy or custom “constitutes deliberate indifference to a serious medical need” is a question to which the answer “will resolve an issue central to the validity of each of the class members’ claims.”) (internal quotations omitted); Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“What all members of the putative class and subclass have in common is their alleged exposure, as a result of specified statewide [prison] policies and practices that govern the overall conditions of health care services and confinement, to a substantial risk of serious future harm to which the defendants are allegedly deliberately indifferent.”).
The following issues related to liability for the DCR Jail Class’s Eighth and Fourteenth Amendment claims are common to all class members and, as demonstrated through the evidentiary record, resolution of these issues will “generate common answers apt to drive the resolution of the litigation.” Dukes, 131 S. Ct. at 2551.  Is DCR deliberately indifferent to the Jail Class Members’ health and safety, as a result of its
abject failure to engage in any oversight whatsoever of the medical and mental health care provided by its contractors? (See supra Section I.B.)  Does DCR’s policy and practice of abdicating responsibility for development, oversight, and implementation of medical and mental health care policies, and overseeing implementation of those policies, to its for-profit contractors expose inmates to a substantial risk of serious harm? (See Section I.B-C supra.)  Does DCR, through its failure to oversee or monitor its contractors’ medical policies, practices, and provision of medical treatment, or lack thereof (including but not limited to intake and screening, staffing, requests for medical care treatment, medication administration and
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monitoring, continuity of care, quality management, and training), expose inmates to a substantial risk of serious harm? (See supra Section I.B-C.)  Does DCR, through its failure to oversee or monitor its contractors’ provision of mental health care, or lack thereof (including but not limited to intake and screening, staffing, suicide prevention, use of isolation, requests for mental health care treatment, medication administration and monitoring, continuity of care, quality management, and training), expose inmates to a substantial risk of serious harm? (See supra Section I.B-C.)  Does DCR’s lack of any systematic mechanism to track and log inmate grievances and complaints regarding medical care and mental health care expose inmates to a substantial risk of serious harm? (See supra Section I.B.)
The questions presented here clearly raise questions of fact and law common to all members of the DCR Jail Class, and courts have found similar questions sufficient in similar cases. See, e.g., Ahlman v. Barnes, --- F. Supp.3d ---, 2020 WL 2754938, at *7 (C.D. Cal. May 26, 2020) (jail inmates satisfied commonality in putative class action alleging deliberate indifference, based on defendant jail’s policies related to COVID-19); Whitney v. Khan, 330 F.R.D. 172, 178 (N.D. Ill. 2019) (certifying class alleging policy of understaffing dental providers in jail, noting that “an illegal policy can serve as ‘the ‘glue’ necessary to litigate otherwise highly individualized claims as a class.’” (quoting Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 498 (7th Cir. 2012)); Scott, 61 F.Supp.3d at 585 (certifying class based on common questions including “whether the [Virginia DOC] fails to provide appropriate oversight, training, and supervision of medical care at [prison]” and “whether the [Virginia DOC’s] policies, procedures, and practices reflect deliberate indifference to the serious medical needs of residents of [prison] such that it has violated their right to be free from cruel and unusual punishment as proscribed by the Eighth Amendment.”)
b. Disability Subclass The members of the Disability Subclass also share common questions capable of common answers. As already explained, pursuant to Title II of the ADA, a “qualified individual with a disability” cannot, “by reason of such disability, be excluded from
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participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In order to comply with the ADA, public entities must, among other things, “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(7).
As established in Section I, supra, DCR maintains no policies or procedures to identify or track inmates in its custody who have disabilities or who need accommodations and modifications to access the jails’ services, activities, and programs. See Armstrong, 275 F.3d at 876. DCR has produced no evidence that it has a true designated responsible employee for ADA compliance, an ADA complaint procedure, nor that it provides information to inmates in its custody about their ADA rights. See id. at §§ 35.107(a)-(b), 35.106. DCR likewise has no policies or procedures to ensure that inmates with disabilities are housed in the most integrated settings appropriate, and that their cells have the necessary accessible elements. See id. § 35.152(b)(2)-(3).
Indeed, the evidence in the case demonstrates that DCR routinely violates the ADA by failing to provide reasonable modifications and accommodations to ensure access to its programs, services, and activities for inmates who are qualified individuals with disabilities. See id. at § 35.130(a). As noted in Section I, supra, examples include failing to provide medical assistive devices, such as hearing aids, eyeglasses, and false teeth, as well as failing to accommodate disabilities that require medications, including both medical and mental health related disabilities. Further, DCR routinely fails to provide modifications for inmates with intellectual, developmental, and/or specific learning disabilities.
Based on the clear language of the ADA and its implementing regulations, issues common to the Disability Subclass include, but are not limited to, the following:
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 Does DCR, through its disability-related policies and practices, or lack thereof (including but not limited to: tracking and identification; housing; provision of assistive devices and auxiliary aids; access to programming including medical and mental health services; educational, vocational, and rehabilitative programs; effective communication; designated responsible employee for ADA compliance; and disability related request and grievance processes) deny inmates who are qualified individuals with disabilities access to DCR programs, services and activities? (See supra Section I.D.)
 Does DCR, through its disability-related policies and practices, or lack thereof (including but not limited to: tracking and identification; housing; provision of assistive devices and auxiliary aids; access to programming including medical and mental health services; educational, vocational, and rehabilitative programs; effective communication; designated responsible employee for ADA compliance; and disability related request and grievance processes) discriminate against inmates who are qualified individuals with disabilities on the basis of disability? (See supra Section I.D.)
Resolution of the issues listed above depends on common contentions and are not
affected by the circumstances of any individual class member. Thus, such questions are
capable of generating common answers and hence are appropriate for class-wide resolution.
See Dukes, 564 U.S. at 350.
3. The typicality requirement of Rule 23(a)(3) is satisfied because the named Plaintiffs have claims sufficiently typical of the class and subclass they seek to represent.
To meet the typicality requirement, the claims of the named plaintiffs must be “typical
of the claims or defenses of the class.” Rule 23(a)(3). The typicality requirement is “satisfied
when each class member’s claim arises from the same course of events, and each class
member makes similar legal arguments to prove the defendant’s liability.” Armstrong, 275
F.3d at 868 (citations omitted). The injuries do not have to be identical but must be similar
and arise from the same course of conduct. Id.; Rodriguez, 591 F.3d at 1124. In a “suit for
prospective injunctive and declaratory relief, the potential for minor factual variations does
not undermine the . . . conclusion that the violation allegedly suffered by the Named Plaintiffs
is typical of that suffered by the class as a whole.” Postawko, 910 F.3d at 1039 (internal
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quotations omitted). For example, in Armstrong, the Ninth Circuit affirmed a ruling certifying a class composed of inmates with different disabilities, holding that the “plaintiffs all suffer a refusal or failure to afford them accommodations as required by statute, and are objects of discriminatory treatment on account of their disabilities.” Armstrong, 275 F.3d at 869. Recognizing that inmates with different disabilities will suffer different specific injuries as a result of the defendants’ conduct, the Court held that those “minor” differences were “insufficient to defeat typicality.” Id.
The claims of the Named Plaintiffs meet the typicality requirement, as they have all suffered the same injuries as the absent class members who they seek to represent, and those injuries have been, and continue to be, caused by the same policies and practices of Defendants that harm the class and subclasses as a whole. The six Plaintiffs, four men and three women, are all currently housed in DCR custody, and all are or have been housed in DCR jails.18 Collectively, they have been injured by every systemic deficiency discussed herein, including in the contexts of medical care, mental health care, and in the provision of reasonable modifications for prisoners with disabilities. (See, e.g., Venters Rep.; Wills Rep.) As discussed in Section I, Defendants’ policies and procedures, or lack thereof, apply equally to all inmates across all DCR jail facilities. All of the named Plaintiffs and the putative class and subclass members share a common injury of having these centralized policies and practices applied to them and, as a result, all are exposed to the same substantial risk of serious harm. The named Plaintiffs’ claims are therefore typical because they are each exposed to the same risks of harm as the class they seek to represent. See, e.g., Hernandez v. Cty. of Monterey, 305 F.R.D. 132, 159-60 (N.D. Cal. 2015) (finding typicality for similar jail class and ADA
18 Defendants have stipulated that even though some individual named Plaintiffs have been transferred between facilities while in DCR custody, DCR will not object to their ability to adequately represent the class on that basis.
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subclass); Dunn v. Dunn, 318 F.R.D. 652, 666 (M.D. Ala. 2016). 4. The proposed class representatives and class counsel will fairly and adequately represent the interest of the class and subclass. a. Proposed class representatives Federal Rule of Civil Procedure 23(a)(4) requires that representative parties “fairly and
adequately protect the interests of the class.” The first component of the adequacy inquiry “goes to the heart of a representative parties’ ability to represent a class.” Deiter, 436 F.3d at 466. “[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)); see also, In re Serzone, 231 F.R.D. at 238-9 (citing Barnett v. W. T. Grant Co., 518 F.2d 543, 546 (4th Cir. 1975)).
The requirement in Rule 23(a)(4) looks to whether any real and material conflicts of interest exist between the named parties and the class they seek to represent. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625-26 (1997) (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157-58, n. 13 (1982)). As the Fourth Circuit has noted:
For a conflict of interest to defeat the adequacy requirement, “that conflict must be fundamental.” A conflict is not fundamental when, as here, all class members “share common objectives and the same factual and legal positions [and] have the same interest in establishing the liability of [defendants].” Moreover, a conflict will not defeat the adequacy requirement if it is “merely speculative or hypothetical.” Ward, 595 F.3d at 180 (citing Gunnells, 348 F.3d at 430-431). The named Plaintiffs will fairly and adequately represent and advance the interests of the class. Each is a member of the class and subclass as defined, each shares the same type of legal injury with absent members, and each has advanced the same legal and remedial theories
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of relief that are advanced for the class as a whole. As a result, the named Plaintiffs have the same strong interest in vindicating the rights of all who have been similarly harmed by WVDCR’s failure to provide adequate medical and mental health care upon admission to jails in West Virginia. Advancing their own individual legal claims will also advance and prove the claims and rights of the class as a whole.
There is no conflict between the interests of the named Plaintiffs and absent class members. Each share the same, crucial interest in receiving adequate and timely medical and mental health treatment. Moreover, the only relief the named Plaintiffs seek is relief that will benefit the class and subclass generally, themselves the same as all others. As a result, the named Plaintiffs meet the adequacy standard of Rule 23(a)(4).
b. Plaintiffs’ counsel meet the requirements of Rule 23(g) and should be appointed class counsel.
Counsel for the named Plaintiffs request to be appointed counsel for the class, pursuant to Federal Rule of Civil Procedure 23(g). That Rule provides in pertinent part:
(1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
(A) must consider: i. the work counsel has done in identifying or investigating potential claims in the action; ii. counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
iii. counsel’s knowledge of the applicable law; and iv. the resources that counsel will commit to representing the class; (B) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class . . . . (2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4) . . . .
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(4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(g). Class counsel are fiduciaries to the absent members of the class. See Rodriguez v. W. Pub. Co., 563 F.3d 948, 968 (9th Cir. 2009); see also Sondel v. NW Airlines, Inc., 56 F.3d 934, 938 (8th Cir. 1995). The duty of adequate representation requires counsel to represent the class competently, vigorously, and without conflicts of interest with the class. See Amchem Prods., 521 U.S. at 626 n. 20. The interests of the absent class members in the vigorous and skilled prosecution of their claims must be protected by counsel adequate to that task. See Woodard v. Online Info. Servs., 191 F.R.D. 502, 506 (E.D.N.C. 2000) (citing Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177, 183 (4th Cir. 1993)). The named plaintiffs’ attorneys must be “qualified, experienced and generally able to conduct the litigation.” In re Serzone, 231 F.R.D. at 238. The named plaintiffs are represented by Lydia C. Milnes, Jennifer S. Wagner, and Rachel Kincaid, and the law firm of Mountain State Justice, Inc., a non-profit, public interest legal services firm with an institutional mission to advocate for the interests of vulnerable West Virginians, regardless of their ability to pay. The organization has a long history of and substantial expertise in class litigation on behalf of low-income West Virginians. See, e.g., Cyrus ex rel. McSweeney, 233 F.R.D. 467 (certified class action suit brought by Mountain State Justice to challenge DHHR policy changes in operation of what is now known as the I/DD waiver program); Michael T., et al. v. Bowling, 2:15cv9655 (S.D.W. Va., September 30, 2016) (certified class action suit brought by Mountain State Justice to challenge DHHR policies relating to the calculation of benefits for those on the I/DD waiver program, raising ADA claims; Lydia Milnes certified as class counsel). Mountain State Justice has extensive experience in federal court litigation to enforce the requirements of law and the Constitution, and skill in the vigorous prosecution and management
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of class action litigation. Moreover, it has the personnel and financial resources to pursue this litigation to a favorable outcome on behalf of the absent class members. (See Decl. of Lydia C. Milnes (attached as Ex. 19); Decl. of Jennifer S. Wagner (attached as Ex. 20); Decl. of Rachel J. Kincaid, (attached as Ex. 21).)
Counsel have demonstrated they are “qualified, experienced and generally able to conduct the litigation.” In re Serzone, 231 F.R.D. at 238. Based on this showing, and the reasons stated above, counsel request this Court appoint them as class counsel pursuant to Federal Rule of Civil Procedure 23(g).
D. Plaintiffs, the Proposed Class, and the Proposed Subclass Satisfy the Requirements of Rule 23(b)(2). In addition to satisfying Rule 23(a), a class action must meet the requirements of one
of the provisions of Rule 23(b). Plaintiffs move for certification under Rule 23(b)(2), which authorizes class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Although a Rule 23(b)(2) class is not required to satisfy the additional predominance and superiority requirements of Rule 23(b)(3), “the class claims must be cohesive.” Postawko, 910 F.3d at 1039 (citing Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1035 (8th Cir. 2010)) (internal quotation marks omitted).
Rule 23(b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief.” Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 58 (3rd Cir. 1994); see also Postawko, 910 F.3d at 1039-1040 (finding district court did not abuse its discretion in “holding that sufficient evidence of a common policy existed to comply with Rule 23(b)(2)” in case involving the Missouri Department of Corrections’ uniform policy regarding Hepatitis
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C); Bradley v. Harrelson, 151 F.R.D. 422, 427 (M.D. Ala. 1993) (subsection (b)(2) “is particularly applicable to suits . . . involv[ing] conditions of confinement in a correctional institution.”). Indeed, cases in which a group of inmates seek to challenge the lawfulness of prison policies are so well suited for Rule 23(b)(2) class treatment that the leading class-action and federal-practice treatises both use it as the exemplar of a case fitting within that subsection: “For example, if a prisoner in a prison conditions lawsuit secures a ruling that a prison policy violates the Constitution, the court-ordered injunctive relief will necessarily apply to all other inmates.” 1 H. Newberg & A. Conte, Newberg on Class Actions § 4.34 (5th ed. 2020 update); see also Wright & Miller, 7A Fed. Prac. & Proc. § 1776.1 (3d ed. 2020 update) (noting that (b)(2) classes are frequently used to enforce the ADA).
Here, Defendants’ policies apply generally to the proposed DCR Jail Class and proposed Disability Subclass, such that the requested injunctive and declaratory relief would provide relief to all class and subclass members. Plaintiffs have produced significant evidence demonstrating the broken nature of the provision of medical and mental health care in West Virginia’s jail system. Pursuant to Defendants’ policies and practices, or lack thereof: (1) the DCR Jail Class is subjected to a health care system that places them at substantial risk of serious harm, including unnecessary injury, illness, and death (see supra Sections I.B-C); and (2) DCR discriminates against the Disability Subclass by failing and refusing to provide reasonable accommodations to enable inmates to access to vital programs, services, and activities of the WVDCR (see supra Sections I.D, II). To remedy these constitutional and statutory violations, Plaintiffs seek only injunctive and declaratory relief. Accordingly, the requirements of Rule 23(b)(2) are met.
III. CONCLUSION
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As set forth herein, Plaintiffs respectfully request this Court certify this case as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), and to appoint the undersigned as class counsel pursuant to Federal Rule of Civil Procedure 23(g).
Respectfully submitted, JOHN BAXLEY, JR., EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, HEATHER REED, and DANNY SPIKER, JR., on behalf of themselves and others similarly situated, By Counsel:
/s/ Lydia C. Milnes Lydia C. Milnes (State Bar No. 10598) Jennifer S. Wagner (State Bar No. 10639) Rachel J. Kincaid (State Bar No. 13726) Mountain State Justice, Inc. 325 Willey Street Morgantown, WV 26505 Phone: (304) 326-0188 Facsimile: (304) 326-0189 lydia@msjlaw.org jennifer@msjlaw.org rkincaid@msjlaw.org Counsel for Plaintiffs
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 Case 3:18-cv-01526 Document 267 Filed 07/17/20 Page 1 of 5 PageID #: 3583

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO HEATHER REED

NOW COMES the Defendant Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, in her official capacity only, and West Virginia Division of

Corrections and Rehabilitation, by counsel, Webster J. Arceneaux, III, James C. Stebbins, and

Valerie H. Raupp of Lewis Glasser PLLC and Briana J. Marino, Assistant Attorney General for

the State of West Virginia, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and they

move this Honorable Court for summary judgment with regard to the claims of Heather Reed as

set forth herein as follows:

1. Plaintiff Heather Reed is a named plaintiff in the above styled civil action. At the time the Second Amended Complaint was filed on December 19, 2019, she had already been transferred out of the regional jails and into a prison, Lakin Correctional Center and jail. Doc. 67 at ¶ 20.

2. Specifically, Plaintiff Heather Reed was previously incarcerated at the Northern Regional Jail in Marshall County, West Virginia from April 10, 2019 to July 29, 2019 and at Tygart Valley Regional Jail in Randolph County, West Virginia from July 29, 2019 to November 20, 2019. Plaintiff Heather Reed is currently serving a sentence of 1-10 years and she is incarcerated

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at Lakin Correctional Center which is a prison in Mason County, West Virginia and not a jail. See Affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(d)).
3. Plaintiff Reed clearly states in her Second Amended Complaint that this “is an action on behalf of inmates admitted to jail facilities throughout West Virginia . . . Plaintiffs seek to ensure that jails in West Virginia promptly provide appropriate and necessary medical and mental health treatment to inmates upon admission, . . .” Doc. 67 at ¶ 1. It is also undisputed that “Plaintiffs bring this suit seeking solely declaratory and injunctive relief.” Doc. 67 at ¶ 2. Plaintiff Reed’s claims for declaratory and injunctive relief are moot, as Plaintiff is no longer housed in a West Virginia Regional Jail facility as set forth in the affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(d).
4. This Court addressed a similar situation on a Motion to Dismiss filed by the West Virginia Regional Jail and Correctional Facilities Authority in S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at pp. 6-7, and it concluded that the Plaintiff’s claim for injunctive relief was mooted by an inmate’s release.
5. This Court should likewise examine the facts and circumstances in this case and conclude that it is undisputed that Plaintiff Reed has been transferred from a Regional Jail facility to a prison and that none of the exceptions to the mootness doctrine are present in this case that would preclude this Court from dismissing the claim of Plaintiff Reed at this time.
6. In addition, this Court should dismiss the claims of Plaintiff Reed for failure to exhaust her administrative grievance remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
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7. This Court should likewise dismiss the deliberate indifference claims in Count I of the Second Amended Complaint under the Eighth and Fourteenth Amendments, United States Constitution, under 42 U.S.C. § 1983, finding that Plaintiff Reed does not have sufficient evidence to support his Count I claims.
8. In addition, it is undisputed that all ten Regional Jails in West Virginia are certified by the National Commission on Correctional Health Care (“NCCHC”). This Court should conclude as a matter of law that NCCHC certification indicates that the ten Regional Jails in West Virginia meet the deliberate indifference standards under the Eighth and Fourteenth Amendments, United States Constitution, United States Constitution, and all claims by Plaintiff Reed under Count I should be dismissed.
9. This Court should likewise dismiss the Count II claims under the Americans with Disability Act (“ADA”), 42 U.S.C § 12132, finding that neither Plaintiff Reed nor any other Plaintiffs have sufficient evidence to support their ADA claims under Count II.
10. Finally, this Court should at a minimum conclude that the claims in Count I under 42 U.S.C. § 1983 should be dismissed against WVDCR since it is not a person under that provision.
WHEREFORE, based upon the foregoing, as more fully discussed in the Memorandum of Law in Support, Defendants respectfully request that this Court enter an order dismissing as moot the Plaintiff Heather Reed’s claims for declaratory and injunctive under the Second Amended in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
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Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 17th day of July 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AS TO HEATHER REED.” and the “MEMORANDUM OF
LAW IN SUPPORT” via the CM/ECF system that will send notification to the following counsel
of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 268 Filed 07/17/20 Page 1 of 21 PageID #: 4230

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO HEATHER REED

Defendants, by counsel, pursuant to Rule 56 of the Federal Rules of Civil Procedure, have

moved this Honorable Court for summary judgment with regard to the claims of Heather Reed as

set forth in the accompanying Motion for Summary Judgment. For the reasons set forth below,

this Plaintiff’s claims should be dismissed with prejudice.

STATEMENT OF FACTS Plaintiff Heather Reed is currently incarcerated at Lakin Correctional Center which is a prison in Mason County, West Virginia. See relevant portions of Heather Reed deposition, Exhibit 2 at p. 7. Before that, Ms. Reed was incarcerated at the Northern Regional Jail (“NRJ”) in Marshall County, West Virginia from April 10, 2019 to July 29, 2019 and at Tygart Valley Regional Jail (“TVRJ”) in Randolph County from July 29, 2019 to November 20, 2019. Id. at p. 8 and Exhibit 1. Plaintiff has been arrested 21 times since 2002. Id. at p. 15. She is currently serving a sentence related to credit card fraud. Id. at p. 12. Plaintiff claims to be disabled due to depression and a low IQ. Id. at p. 12. Ms. Reed claims to have bi-polar disorder, depression, anxiety, ADHD, type 1 diabetes, thyroid problems, rheumatoid arthritis, gastritis, and a heart condition. See Second Amended Complaint (Doc. 67) at ¶ 156.

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Ms. Reed has only two main medical complaints concerning her time at NRJ and TVRJ. First, Ms. Reed alleges that upon her arrival at NRJ, she went several months without the medication Lamictal which she used at the time to treat her bi-polar disorder. Id. at ¶¶ 161-162. Her other complaint is that on one occasion while she was at TVRJ, she witnessed a nurse inappropriately mix multiple types of insulin before giving her an injection. Id. at ¶ 164.
In her deposition, plaintiff testified that when she was first admitted to NRJ, she went without any Lamictal1 for three months. Exhibit 2 at p. 39. She admits that when she first arrived, she called one of her doctors to have him place her back on certain medications. Id. at p. 42-43. However, plaintiff also admits that she did not call the physician who had prescribed her the Lamictal “because I think he was in some kind of trouble.” Id. at p. 43. Plaintiff also freely admits that she did not ask anyone at the jail for her Lamictal for the first three months and only made a request for it after she became “depressed” at which point she requested it. Id. at p. 45. She also admitted that as soon as she asked about it, “they put me back on it.” Id. at p. 47. In short, plaintiff may have been without Lamictal for three months when she first got to NRJ. However, she never complained until the end of that three-month period and when she asked, she promptly received it.
Ms. Reed filed a total of 16 grievances while at NRJ and TVRJ. See Reed grievances, Exhibit 3 (Bates Nos. DCR116375-116385). The grievances dealt with her diabetes, medications, and clothing issues. Ms. Reed admits that she never appealed any of her grievances. Exhibit 2 at p. 76. While she apparently has some difficulty reading, Ms. Reed was able to read the word “appeal” when shown a screen shot of the appeal button on the inmate kiosk. Id. at p. 115.
STANDARD OF REVIEW Under Rule 56(c), Federal Rules of Civil Procedure, “Summary judgment is proper where
1 Plaintiff referred to this medication as “Lamintal” in her deposition but she meant “Lamictal.”
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the pleadings, depositions, and affidavits in the record show that there is ‘no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”’ Kitchen v. Summers Continuous Care Center, LLC, 552 F.Supp.2d 589, 592 (S.D. W.Va. 2008) (Quoting Fed.R.Civ.P. 56(c)). “The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 322-323 (1986). “The nonmoving party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]’” Piedmont Behavioral Health Ctr., LLC v. Stewart, 413 F.Supp.2d 746, 751 (S.D. W.Va. 2006)(Goodwin, J.).
District Courts in West Virginia have applied this standard in granting motions for summary judgment in appropriate inmate cases involving Eighth Amendment issues related to health care and other matters. See Langley v Arresting Officers,2020 U.S. Dist. LEXIS 56160 (S.D. W.Va. 2020); Smith v PrimeCare Medical, et al., 2020 U.S. Dist. LEXIS 101065 (S.D. W.Va. 2020); and, Salmons v. Western Reg. Jail, 2020 U.S. Dist. LEXIS 97540 (S.D. W.Va. 2020).
ARGUMENT I. PLAINTIFF HEATHER REED’S CLAIMS FOR INJUNCTIVE AND
DECLARATORY RELIEF REGARDING INMATE MEDICAL CARE AT WEST VIRGINIA JAILS ARE MOOT SINCE SHE HAS BEEN TRANSFERRED TO A PRISON. This Court has recognized that in prison cases the “prisoner challenging a specified prison policy must have a ‘present interest affected by that policy’ in order to be heard.” S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at p. 4 (quoting Weinstein v. Bradford, 423 U.S. 147, 148 (1975)). The Fourth Circuit has confirmed and implemented this principle through a general rule that “the transfer of an inmate from a unit or location where he is subject to the challenged policy, practice, or condition, to a different unit or location where he is no longer subject to the challenged policy,
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practice, or condition moots his claims for injunctive and declaratory relief…”. Incumma v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007). See also Rendelman v. Rouse, 569 F.3d 182, 18687 (4th Cir. 2009)(discussing this general rule of mootness and holding that the transfer out of state custody to federal prison after conviction mooted Plaintiff’s claim for injunctive relief)(internal citations omitted); Incumma, supra (discussing cases supporting the mootness of injunctive relief claims when an inmate is released and finding the inmate’s claims for injunctive relief under the First Amendment moot); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)(holding a prisoner transfer mooted claims for declaratory and injunctive relief). This is because once removed from the location, the inmate “no longer has a legally cognizable interest in a judicial decision on the merits of his claim.” Incumma, 507 F.3d at 287.
In S.M.B., supra, at pp. 6-7, this Court considered whether an inmate’s claim for injunctive relief was mooted by his parole:
In this case, Plaintiff was paroled on March 28, 2017. While he was purportedly housed in a West Virginia correctional facility at the time he filed his Complaint, this is no longer the case. As Plaintiff is no longer housed in a WVRJCFA facility, he is no longer subject to the prison policy he challenges and, accordingly, has no “present interest affected by that policy.” As a result, the Court FINDS that Plaintiff’s claim for equitable relief against WVRJCFA is moot. In so holding, this Court relied upon the Court of Appeals decision in Incumaa, supra, and other similar decisions. This Court also concluded that none of the exceptions to the mootness doctrine were present in that case. Likewise, in Whitmore v. Western Reg’l Jail, 2019 U.S. Dist. LEXIS 133646 (S. D. W. Va. July 19, 2019), Magistrate Eifert reviewed a pro se inmate complaint regarding conditions at Western Regional Jail and found that the inmate’s transfer to a different correctional facility effectively mooted his claim for injunctive relief, that no exception applied and dismissed his claim for injunctive relief. Id. at pp. 11-13. This Court accepted and incorporated Magistrate Eifert’s findings and recommendation and dismissed the complaint with prejudice.
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Whitmore v. W. Reg’l Jail, 2019 U.S. Dist. LEXIS 132230 (S. D. W. Va. August 7, 2019). This case, like S.M.B. and Whitmore, should be dismissed as moot because Plaintiff Reed
is no longer an inmate of a Regional Jail governed by the policies challenged in the Second Amended Complaint. At the time the Second Amended Complaint was filed on December 19, 2019, Ms. Reed was sentenced to one to ten years and incarcerated at Lakin Correctional Center, and had already been transferred Doc. 67 at ¶ 20. Prior to her transfer to prison, Ms. Reed, was at NRJ from April, 2019 to July, 2019 and at TVRJ from July, 2019 to November, 2019. See Affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(d). It cannot be genuinely disputed that Plaintiff Reed is no longer incarcerated in a West Virginia Regional Jail facility as she has been transferred to the Lakin Correctional Facility. As such, she does not have a present interest affected by any of the challenged policies, practices or conditions raised in the Second Amended Complaint. No exceptions to the mootness doctrine should apply.
II. PLAINTIFF HEATHER REED HAS NOT EXHAUSTED HER ADMINISTRATIVEEMEDIES AS TO ANY CONDITION OF CONFINEMENT REFERENCED IN THE SECOND AMENDED COMPLAINT AND THEREFORE, IT SHOULD BE DISMISSED.
Plaintiff Reed failed to exhaust her administrative remedies under the Prison Litigation Reform Act of 1995, ("PLRA"), 42 U.S.C. § 1997 et seq. prior to seeking judicial redress. All of her claims related to an alleged failure to provide medical and mental health treatment to inmates upon admission to a Regional Jail should be dismissed because prisoners are required to exhaust their administrative remedies prior to bringing an action in court and that requirement was not met for any of Plaintiff Reed’s claims. Likewise, any claim for a failure to accommodate a disability or claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12133 (“ADA”) is subject to the PLRA. Specifically, Defendants argue that Plaintiff failed to do the following: (1) provide evidence of exhaustion; (2) timely appeal the decisions; and (3) grieve or exhaust issues
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related to medical treatment prior to the filing of the Second Amended Complaint. Further, there are no issues of fact regarding whether the grievance process is "available" to Plaintiff Reed.
The PLRA, 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The term “prison conditions” as utilized by the PLRA is defined as “...conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings.” 18 U.S.C. § 3626(g)(2). In Porter v. Nussle, 534 U.S. 516, 531 (2002), the United States Supreme Court held that “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” The exhaustion requirement also applies regardless of the relief sought by the inmate through the administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001).
“Not only must a prisoner exhaust his administrative remedies, but he must also do so properly.” Wells v. Parkersburg Work Release Ctr., 2016 U.S. Dist. LEXIS 21026, 2016 WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 U.S. Dist. LEXIS 20459, 2016 WL 707457 (S.D. W. Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)).
If a plaintiff fails to exhaust his or her administrative remedies under the PLRA, then the defendant is entitled to judgment as a matter of law. Legg v. Adkins, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017). Whether an administrative remedy has been exhausted
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for purposes of the PLRA “is a question of law to be determined by the judge.” Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, 2017 WL 4004579, at *3 (S.D. W. Va. 2017) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)).2 Disputed questions of fact regarding exhaustion of administrative remedies are resolved by the court. See id.
The West Virginia Division of Corrections and Rehabilitation (WVDCR) provides a grievance procedure in order to ensure direct access to an administrative remedy for inmates regarding all aspects of their confinement, including claims for medical care and conditions of confinement.3 The Inmate Handbook sets forth the formal process through which an inmate may seek “redress over any matter concerning prison life.” Exhibit 4, excerpts of Inmate Handbook. Under Grievance Procedures outlined in the Inmate Handbook, an inmate may file a grievance to an Administrator and, if unsatisfied by the response or if the response is not timely received in the manner prescribed by policy, the inmate may appeal to the Chief of Operations. Id. If the inmate is still not satisfied by the response received or does not receive a timely response, a third level of administrative oversight is included in the policy: an appeal to the Commissioner of WVDCR. Id.
While the PLRA requires administrative exhaustion prior to seeking judicial resolution of a complaint, an inmate is only required to exhaust those administrative remedies which are actually available. 42 U.S.C. § 1997e(a)) (“The PLRA, however, requires exhaustion of only ‘such
2 Like the PLRA, the WVPLRA “require[s] inmates to exhaust their administrative remedies before they bring a lawsuit.” Legg v. Adkins, No. 2:16-cv-01371, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017) (citing 42 U.S.C. § 1997e(a); W. Va. Code § 25-1A-2a(i)). Under the WVPLRA, “[a]n inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted.” W. Va. Code § 25-1A-2(c). The WVPLRA defines an ordinary administrative remedy as “a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life. . . .which includes health care” Id. § 25-1A-2(a). This Court should conclude that Plaintiff Reed also failed to exhaust her grievances under the WVPLRA as well. 3 Per House Bill 4338 (2018) the West Virginia Regional Jail and Correctional Facility Authority was consolidated with the West Virginia Division of Corrections and West Virginia Division of Juvenile Services to form the West Virginia Division of Corrections and Rehabilitation. This newly-formed entity assumed responsibility for the operations of West Virginia regional jails on July 1, 2018.
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administrative remedies as are available.’”). "The availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is “on the books.” Ross v. Blake, 136 S. Ct. 1850 , 1859, 195 L. Ed. 2d 117 (2016)). Rather, a remedy is available only if it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859.
The Supreme Court noted three specific instances in which a remedy would not be “available” for purpose of PLRA exhaustion. Id. “First, an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross 136 S. Ct. at 1859, (citing Booth, 532 U.S. at 736, 738). Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Id. “[W]hen a remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable.” Id. Finally, the third scenario in which the Supreme Court would find a remedy unavailable is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, once the defendant has made a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff. Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, *11, 2017 WL 4004579 (S. D. W. Va. 2017).
Plaintiff Reed’s suit is subject to the requirement that all administrative remedies be exhausted prior to the suit being filed on December 19, 2019. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003).
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In the present civil action, Plaintiff Reed alleges that she did not receive adequate medical or mental health care while incarcerated at NRJ and TVRJ. Therefore, Plaintiff’s suit is subject to the requirement that all administrative remedies be exhausted prior to filing suit; where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D. W.Va. 2003). Here, the Plaintiff filed numerous grievances. Exhibit 3. It is apparent from the grievance log that each of the grievances were responded to or properly forwarded to someone in medical that could assess her claims. Id. None of these grievances were appealed. Therefore, her complaints about her medical care were not exhausted by the grievance process as required by the PLRA and WVPLRA.
Plaintiff Reed was incarcerated at NRJ in Marshall County, West Virginia from April 10, 2019 to July 29, 2019 and at TVRJ in Randolph County from July 29, 2019 to November 11, 2019. Exhibit 2 at p. 8. Ms. Reed has only two main medical complaints concerning her time at NRJ and TVRJ. First, Ms. Reed alleges that upon her arrival at NRJ, she went several months without the medication Lamictal which she used at the time to treat her bi-polar disorder. Doc. 67 at ¶¶ 161162. Her other complaint is that on one occasion while she was at TVRJ, she witnessed a nurse inappropriately mix multiple types of insulin before giving her an injection. Id. at ¶ 164.
Plaintiff Reed filed a total of sixteen grievances during this time. See Exhibit 3. She filed approximately ten grievances while at TVRJ. Id. Plaintiff Reed filed six grievances while incarcerated at NRJ. Id. Of these grievances, one requests special shoes for her diabetes that are not provided by the jail or related to complaints made in this suit; the other mentions the above alleged instance of mixing insulins, but does not request relief nor did she file an appeal. Id. In fact, Ms. Reed admits that she never appealed any of her grievances. Exhibit 2 at p. 76. While
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she apparently has some difficulty reading, Ms. Reed was able to read the word “appeal” when shown a screen shot of the appeal button on the inmate kiosk. Id. at p. 115.
Here, the grievance process is available to all inmates and certainly to Ms. Reed and is outlined in the Inmate Handbook. Exhibit 4. It is undisputed that Plaintiff Reed accessed and viewed the Inmate Handbook at least once. See Exhibit 6, inmate kiosk view log. Therefore, the grievance process cannot be considered "unavailable."
Looking at this evidence as a whole, the Court must conclude that there are no genuine issues of material facts regarding whether the grievance process is available to Plaintiff Reed and whether she properly exhausted the administrative remedies prior to bringing this issue before this Court. Plaintiff routinely utilized the grievance process during her incarcerations at both TVRJ and NRJ, she just did not utilize the grievance process to properly exhaust her remedies related to his medical claims in this case. Therefore, the grievance process cannot be considered "unavailable" because she successfully filed at least sixteen grievances in total. Instead, Plaintiff simply failed to exhaust the administrative remedies available to her via the grievance procedure set forth in the Inmate Handbook. "[T]he PLRA[']s exhaustion requirement requires proper exhaustion" to include all steps that the agency has established and doing so consistent with the instructions provided. Woodford v. Ngo, 548 U.S. 81, 90 & 93 (2006). For these reasons, pursuant to the PLRA, Defendants are entitled to summary judgment on all claims by Plaintiff Reed due to her failure to exhaust his available administrative remedies under the PLRA.
III. THIS COURT SHOULD CONCLUDE AS A MATTER OF LAW THAT ALL OF THE DELIBERATE INDIFFERENCE CLAIMS FOR LACK OF MEDICAL AND MENTAL HEALTH TREATMENT UNDER COUNT I OF THE SECOND AMENDED COMPLAINT ARE WITHOUT MERIT.
Although an inmate is plainly entitled to receive adequate medical and mental health care while incarcerated, no inmate is entitled to receive, nor may he or she insist, that the State of West
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Virginia provide her with, the most sophisticated care that money can buy. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.1987). Rather the constitution only requires that certain minimum standards of medical and mental health treatment are met, “not that they cater to the individual preference of each inmate.” Chase v. Quick, 596 F. Supp. 33, 35 (D.R.I. 1984). Deliberate indifference to a serious medical or mental health need of an inmate, including psychiatric care, can constitute unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976).
To adequately plead and prove an Eighth Amendment claim of deliberate indifference to the medical or mental health needs of an inmate, a plaintiff must satisfy a two-part test comprised of both objective and subjective components. First, Plaintiff must prove that the alleged deprivation of mental health treatment was “objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In order to satisfy the objective prong in a conditions of confinement claim, the prisoner must “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions,” or “demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions.” Importantly, “only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim.” Shakka v. Smith, 71 F.3d 162 (4th Circ. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 8-9 (1993)).
Second, Plaintiff Reed must demonstrate by competent, reasonable, and admissible evidence that the prison official had “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3. This subjective prong of the test requires Plaintiff to prove that Defendants had actual knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. Only when the official is “aware of facts from which the inference could be drawn that a substantial
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risk of serious harm exists, and he [draws] the inference[]” does the requisite degree of culpability exist to satisfy the second element of the inquiry. Id. Neither negligence nor medical malpractice in diagnosis or treatment of an inmate’s medical/mental health condition may give rise to an Eighth Amendment deliberate indifference claim.
Importantly, the Fourth Circuit reviews Eighth Amendment claims based on the totality of the circumstances. See, Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir. 1976); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 865 (4th Cir. 1975). This Court followed this same deliberate indifference standard related to the COVID-19 conditions at West Virginia Regional Jails and Prisons in its April 8, 2020, Order in this case denying the preliminary injunction, Doc. 183 at pp. 13-14, as the Court found that the inmates could not meet that standard.
This Court’s decision on COVID-19 is well-reasoned and it equally applies in this instance. Just as Defendants had a plan to deal with the coronavirus, Defendants have a contract to deal with medical and mental health needs in this case. As set forth in paragraph 4 of the Affidavit of Commissioner Jividen (Exhibit 5):
DCR contracts with PrimeCare Medical, Inc. to provide health care to inmates at nine of the Regional Jails, all except for Northern Regional Jail. Health care is provided to inmates at Northern through Wexford Health Sources, Inc. Wexford also provides health care for all of the inmates at the Correctional Centers. Pursuant to the contracts, PrimeCare and Wexford are required to provide the proper staffing and adequate health care for inmates at their respective facilities. The Court has further been provided with copies of the contracts with PrimeCare and Wexford for its review. A. Plaintiff Reed Has Failed to Establish that Defendants were Deliberately
Indifferent to a Substantial Risk of Serious Harm to Plaintiff. Plaintiff Reed cannot establish facts sufficient to proceed under § 1983 as to the objective
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prong of Farmer v. Brennan, supra. Under that prong, the Second Amended Complaint must allege that specific prison officials were deliberately indifferent to a risk of serious harm to the Plaintiff. Even assuming, arguendo, that Plaintiff Reed had properly pled the requisite "serious deprivation" for an Eighth Amendment claim, Plaintiff cannot establish sufficient facts to establish the requisite “deliberate indifference” specifically as to Defendants.4 Commissioner Jividen has set forth in her affidavit that she is an attorney, not a licensed healthcare provider and that Defendants have no role in the delivery of healthcare in the Regional Jails. Exhibit 5 ¶¶ 8-9.
Deliberate indifference requires a showing that the official was subjectively aware of a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (U.S. 1994). In order to possess this level of culpability, “the official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id. To be liable, the prison officials must actually know of and disregard the risk. Id. at 837.
The Fourth Circuit has characterized the deliberate indifference standard as an “exacting one. Lightsey, 775 F.3d at 178.” Jones v. Chapman, 2017 U.S. Dist. LEXIS 87907 at *87-91 (D. Md. June 7, 2017). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness . . .” Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319 ( 4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986).” Id. “Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir. 1999).
Magistrate Tinsley, writing for this district, recently addressed a very similar situation
4 The only parties with the requisite knowledge regarding the delivery of medical and mental health care that should have been sued here, but were not, are PrimeCare and Wexford. This Court may note that the Defendants tried to join them as third-party defendants earlier, but the Plaintiffs opposed this joinder, and this Court agreed. Doc. 110.
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regarding medical care for an inmate in a proposed findings and recommendations for disposition in Greene v. Ballard, 2020 U.S. Dist. LEXIS 59180 (S.D. W.V. 2020), aff’d. 2020 U.S. Dist. LEXIS 53023 (S.D. W.V. 2020). In examining the second factor under the Farmer decision, Magistrate Tinsley at pp. 26-27, stated:
Defendants Ballard, Frame, Clifford, Mitchell, and Snyder appear to be correctional or administrative staff, and not licensed healthcare providers. The Second Amended Complaint does not specifically allege that any of these defendants interfered with the treatment being provided to Greene for his medical needs. To the extent that the Second Amended Complaint alleges that Greene was denied the ability to attend follow-up outside doctor's appointments, he has failed to specifically identify which defendant or defendants made those decisions….Thus, the Second Amended Complaint falls woefully short of sufficiently pleading the subjective component necessary to state a plausible claim of deliberate indifference on this basis. This Court should consider the decision in Greene and the deliberate indifference standard and reach a similar conclusion.
In the instant matter, Plaintiff has made allegations against Defendants that they were deliberately indifferent to her medical needs based on the medical care she received in NRJ and TVRJ. It is undisputed in this case that none of those specific care allegations relate to any conduct by Defendants, instead they appear to be grounded in policies. There is no indication that Defendants were either 1) aware of the specific allegations of Plaintiff (nor could there be because she failed to properly follow the administrative procedure in place) and 2) that they were aware or intended for the policies to be an excessive risk to any inmate. Plaintiff has not identified a specific policy or procedure that Defendants knew was inappropriate under the deliberate intent standard and therefore Plaintiff cannot show “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3 nor can she show that Defendants had an actual knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. This Court should determine as a matter of law that Plaintiff has wholly failed to martial the necessary fact to establish deliberate
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indifference on the part of Defendants. As such, all claims under Count I of the Second Amended
Complaint must be dismissed as a matter of law.
B. Defendants have required that PrimeCare and Wexford Maintain NCCHC Accreditation and this Court Should Rule as a Matter of Law that Meeting NCCHC’s Standards are Substantial Evidence of Compliance with the Constitutional Standards of Deliberate Indifference.
As set forth in Commissioner Jividen’s affidavit (Exhibit 5):
a part of the contracts, each health care facility operated by PrimeCare and Wexford are required to be accredited by National Commission on Correctional Health Care ("NCCHC"), a nationally recognized organization with the mission of improving the quality of health care in prisons. Every couple of years the NCCHC does a thorough audit of each facility and they review compliance with 39 essential standards and 20 important standards. The NCCHC requires 100% compliance with the essential standards for a facility to receive its accreditation. If you are not in full compliance with the essential standards, a contingent approval is provided and the facility is given a period of time to meet all of the essential standards.
Id. at ¶ 5. In ¶¶ 6-7 of her affidavit, she further attests that all nine of the PrimeCare Regional Jail
health care facilities have met the NCCHC accreditation standards and Wexford has received
contingent approval for its health care facility at Northern Regional Jail.
The District Court in Balla v. Idaho State Board of Corrections, 2020 U.S. Dist. LEXIS
95915 (D. Idaho 2020) recently examined the NCCHC standards in an Eighth Amendment
deliberate indifference case related to medical and mental health for inmates that has been ongoing
for almost 40 years. In that case, the district court discussed at length the NCCHC standards and
considered them as evidence of compliance with the Eighth Amendment deliberate indifference
standard. The district court made clear that the NCCHC standards, as “best practices” are not the
“constitutional floor” but something to be considered along with the fact in the case. Id. at p. 29.
Based upon the foregoing and the evidence in the case, the district court dismissed the case.
Likewise, in this case, this Court should consider the NCCHC standards for accreditation and the
evidence in the case, and conclude as a matter of law that all claims under Count I of the Second
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Amended Complaint must be dismissed against Commissioner Jividen. IV. ALL CLAIMS UNDER COUNT II OF THE SECOND AMENDED COMPLAINT RELATED TO THE AMERICANS WITH DISABILITY ACT SHOULD BE DISMISSED AS A MATTER OF LAW. Plaintiff’s claims in Count II of the Second Amended Complaint fall under Title II of the
Americans with Disabilities Act (“ADA”) likewise fail. In order to present a claim under the ADA, Plaintiff must establish: “(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program or activity; and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against on the basis of their disability.” Gordon v. Tygart Valley Reg’l Jail, 2013 U.S. Dist. LEXIS 28444 (N.D. W. Va. 2013)(citations omitted).
First, out of an abundance of caution, because there is some vagueness as to the basis of the Plaintiff’s ADA allegations based on the discovery to date, to the extent that Count II attempts to assert a claim against either Defendant under Title II of the ADA based on allegations that do not implicate constitutional rights, those claims are barred by sovereign immunity. See Sims v. Marano, 2020 U.S. Dist. LEXIS 20384 at 14-15 (W.D. Va. 2020)(mem. op.)(citing United States v. Georgia, 546 U.S. 151 (2006) and Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007)). To the extent that Count II attempts to assert a Title II claim under the ADA against Defendant Jividen in her official capacity, those claims are limited to prospective injunctive relief. Id. at 17.
Second, with regard to Title II clams under the ADA that are based on alleged constitutional violations, for the purposes of this Motion only, Defendants will assume Plaintiffs can meet the threshold to be considered disabled. However, even assuming, arguendo, that Plaintiff is disabled under this standard “courts routinely dismiss ADA suits by disabled inmates that allege inadequate medical treatment, but do not allege that the inmate was treated differently because of his/ her
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disability.” Gordon, supra at 10. The Court found “it is not enough, in asserting a Title II discrimination claim under the ADA, for the Plaintiff to show that he received inadequate care in light of his disability. He must demonstrate that he was excluded from participation in a program or activity, or otherwise discriminated against, on the basis of his disability.” Id. at 12. In this case, Plaintiff Reed cannot demonstrate such discrimination or that a request for accommodation that was denied and appealed through the required administrative process.
In the Second Amended Complaint, Plaintiff Reed claims that all Plaintiffs did not receive necessary accommodations for disabilities to enable them to participate in jail life in the same manner as non-disabled inmates. Doc. 67 at ¶ 185. In addition, she has alleged that Plaintiffs were discriminated against by a failure to provide reasonable accommodations. Id. at ¶ 186. The Amended Complaint further appears to allege that the Defendants’ policies do not provide for appropriate medical treatment, including mental health services, “immediately upon entry to the State jails” and that this is a violation of the ADA and is discrimination against the Plaintiffs. Id. at ¶ ¶ 257 and 258. See also Id. at ¶ 255.
To the extent that Plaintiff attempts to argue that her ADA claims are based on the same facts as the allegations related to the claim of deliberate indifference discussed supra, Plaintiff’s argument fails. Plaintiff’ Reed’s Second Amended Complaint does not allege that she is receiving different medical care because of her disability. Accordingly, any claim related to medical care appears to be that the medical care received was inadequate. At set forth above, the Second Amended Complaint allegations related to medical care fail to meet the deliberate indifference standard and must be dismissed. Regardless, it is well settled that a claim of inadequate medical care is insufficient to establish a claim under the ADA. See Gordon, supra. See also Mondowney v. Balt. Cty. Det. Ctr., 2019 U.S. Dist. LEXIS 119566, p. 58-59 (D. Md. 2019)(discussing cases
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finding that a lack of medical treatment does not violate rights under the ADA); Spencer v. Easter, 109 F. Appx. 571, 773 (4th Cir. 2004)(failure to provide timely medication refills not an ADA violation); Bryant v. Madigan, 84 F. 3d. 246, 249 (7th Cir. 1996) (ADA not violated by a simple failure to attend to the medical needs of disabled prisoners).
Plaintiff Reed has failed to articulate how she has been treated differently because of her alleged disabilities with regard to any jail program or service. With regard to her grievances, Plaintiff Reed has only pointed to a request for her diabetic shoes and it was explained that it had to be approved by medical at the jail in which she was currently residing. See Exhibit 3 at DCR 116379. It also appears she did receive the shoes at some point at both regional jails. See Exhibit 2 at pp 63-64. She has not identified any other program or service that that she sought to participate in and was denied entry based on her disability. Instead, the allegations in the Second Amended Complaint are generally stated as a lack of accommodation and a general reference to policies. However, when asked in discovery to identify any evidence of an ADA violation, Plaintiff provided no specific information, she simply objected to the timing, calling the interrogatory an “improper block buster request, and calls for a legal conclusion that Plaintiff is not qualified to answer,” and, notwithstanding that objection and without waiving the same, she identified her medical conditions but no specific policy, program, accommodation or other specific alleged ADA violation. See Exhibit 7, Plaintiff’s response to Defendants’ Interrogatory No. 21. To the extent that the allegations at issue are related to an accommodation for a disability, even general accommodations, they are subject to the exhaustion requirements of the PLRA. See e.g. O’Guinn v. Lovelock Corr. Ctr. 502 F.3d 1056, 1061-62 (9th Cir. 2007)(discussing plain language of PLRA requiring exhaustion of administrative remedies before bringing ADA and Rehabilitation Act claims); Corpening v. Hargrave, 2015 U.S. Dist. 80447, 10-11 (W. D. N.C. 2015) (same). As
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discussed supra, Plaintiff failed to exhaust the available administrative remedies for any requested accommodation, including diabetic shoes, and so her claims must be dismissed as a matter of law.
Finally, even assuming, arguendo there were a failure to accommodate the Plaintiff or a violation of the ADA, which is denied, that past failure without continuing, present adverse effects for this Plaintiff and does not constitute a basis for “a present case or controversy regarding injunctive relief.” Sims v. Marano, 2020 U.S. Dist. LEXIS 20384, 17-18 (W. D. Va. 2020)(Mem. Op.)(citing O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) in evaluating an inmate’s pro se claims that his rights were violated under the ADA and noting that, inter alia, a claim related to the denial of a prosthetic leg under the ADA – which had been previously dismissed for failure to state a claim – could not be the basis for injunctive relief when he received a prosthetic leg after the lawsuit was filed because it was a prior harm). As such because Plaintiff Reed is no longer subject to any policy or lack of accommodation at a West Virginia Regional Jail, her claims cannot be the basis for the prospective injunctive relief sought and should be dismissed.
V. COUNT I OF THE SECOND AMENDED COMPLAINT MUST BE DISMISSED AGAINST WVDCR SINCE IT IS NOT A PERSON.
WVDCR is entitled to dismissal under Count I of the Second Amended Complaint as a matter of law because it is not a “person” subject to suit in this court under 42 U.S.C. § 1983. That section provides a remedy to parties who are deprived of protected civil rights by “persons” acting under color of any state “law, statute, ordinance, regulation, custom, or usage.” The Supreme Court in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) held that a state nor its agencies are “persons” under § 1983. The Fourth Circuit has confirmed that it is “well settled” that a state or a state agency are not “persons” as required under 42 U.S.C. § 1983. See e.g Kelly v. State, 2007 U.S. Dist. LEXIS 95954 (D. Md. 2007) aff’d 267 F. App'x 209, 210, 2008 U.S. App. 1226 (4th Cir. 2008) (recognizing that it has been “well settled” that the state cannot be sued under 42 U.S.C.
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§ 1983 and noting that “[a] cause of action under § 1983 requires the deprivation of a civil right by a “person” acting under color of state law.)
Court I against WVDCR clearly falls within the category of attempted § 1983 actions that cannot be brought under § 1983 because WVDCR is not a person. In similar cases, the State and its agencies have been found not to be “persons” under § 1983 and have been dismissed from suit. See Cochran v. W. Va. Reg'l Jail & Corr. Facility Auth., 2014 U.S. Dist. LEXIS 89893, at *8 (S.D. W.Va. 2014)(holding W.Va. Regional Jail and Correctional Facility Authority, the predecessor to WVDCR, is a state agency and that no § 1983 action could be brought against it) and Black v. West Virginia, 2019 U.S. Dist. LEXIS 172020, at *10-12 (S.D. W.Va. 2019)(holding the State was entitled to dismissal because it is not a “person” subject to liability or suit under § 1983). This Court as a matter of law should dismiss WVDCR from Count I of the Second Amended Complaint.
CONCLUSION WHEREFORE, based upon the foregoing, Defendants respectfully request that this Court dismiss as moot the Plaintiff Heather Reed’s claims for declaratory and injunctive in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
Respectfully submitted on behalf of Defendants by: LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com
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PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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 Case 3:18-cv-01526 Document 269 Filed 07/17/20 Page 1 of 5 PageID #: 4251

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO EARL EDMONDSON

NOW COMES the Defendant Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, in her official capacity only, and West Virginia Division of

Corrections and Rehabilitation, by counsel, Webster J. Arceneaux, III, James C. Stebbins, and

Valerie H. Raupp of Lewis Glasser PLLC and Briana J. Marino, Assistant Attorney General for

the State of West Virginia, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and they

move this Honorable Court for summary judgment with regard to the claims of Earl Edmondson

as set forth herein as follows:

1. Plaintiff Edmonson is a named plaintiff in the above styled civil action. At the time the Second Amended Complaint was filed on December 19, 2019, Mr. Edmonson was convicted and he was an inmate at Northern Regional Jail. Doc. 67 at ¶ 16.

2. Plaintiff Edmondson was incarcerated for a short time at Martinsburg Correctional Center in Berkeley County, West Virginia (a prison) from January 17, 2020 to February 13, 2020. Plaintiff Earl Edmondson is currently serving a sentence of 1-5 years and he is incarcerated at the Pruntytown Correctional Center in Taylor County, West Virginia since February 13, 2020, for an unlawful assault. See Affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(e)).

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3. Plaintiff Edmondson clearly states in his Second Amended Complaint that this “is an action on behalf of inmates admitted to jail facilities throughout West Virginia . . . Plaintiffs seek to ensure that jails in West Virginia promptly provide appropriate and necessary medical and mental health treatment to inmates upon admission, . . .” Doc. 67 at ¶ 1. It is also undisputed that “Plaintiffs bring this suit seeking solely declaratory and injunctive relief.” Doc. 67 at ¶ 2. Plaintiff Edmondson’s claims for declaratory and injunctive relief are moot, as Plaintiff is no longer housed in a West Virginia Regional Jail facility as set forth in the affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(e).
4. This Court addressed a similar situation on a Motion to Dismiss filed by the West Virginia Regional Jail and Correctional Facilities Authority in S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at pp. 6-7, and it concluded that the Plaintiff’s claim for injunctive relief was mooted by his release.
5. This Court should likewise examine the facts and circumstances in this case and conclude that it is undisputed that Plaintiff Edmondson has been transferred from a Regional Jail facility to a prison and that none of the exceptions to the mootness doctrine are present in this case that would preclude this Court from dismissing the claim of Plaintiff Edmonson at this time.
6. In addition, this Court should dismiss the claims of Plaintiff Edmonson for failure to exhaust his administrative grievance remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
7. This Court should likewise dismiss the deliberate indifference claims in Count I of the Second Amended Complaint under the Eighth and Fourteenth Amendments, United States
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Constitution, under 42 U.S.C. § 1983, finding that Plaintiff Edmondson does not have sufficient evidence to support his Count I claims.
8. In addition, it is undisputed that all ten Regional Jails in West Virginia are certified by the National Commission on Correctional Health Care (“NCCHC”). This Court should conclude as a matter of law that NCCHC certification indicates that the ten Regional Jails in West Virginia meet the deliberate indifference standards under the Eighth and Fourteenth Amendments, United States Constitution, United States Constitution, and all claims by Plaintiff Edmondson under Count I should be dismissed.
9. This Court should likewise dismiss the Count II claims under the Americans with Disability Act (“ADA”), 42 U.S.C § 12132, finding that neither Plaintiff Edmonson nor any other Plaintiffs have sufficient evidence to support their ADA claims under Count II.
10. Finally, this Court should at a minimum conclude that the claims in Count I under 42 U.S.C. § 1983 should be dismissed against WVDCR since it is not a person under that provision.
WHEREFORE, based upon the foregoing, as more fully discussed in the Memorandum of Law in Support, Defendants respectfully request that this Court enter an order dismissing as moot the Plaintiff Earl Edmonson’s claims for declaratory and injunctive under the Second Amended in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
Respectfully submitted on behalf of Defendants by:
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LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 17th day of July 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AS TO EARL EDMONDSON.” and the “MEMORANDUM
OF LAW IN SUPPORT” via the CM/ECF system that will send notification to the following
counsel of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 270 Filed 07/17/20 Page 1 of 21 PageID #: 4983

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526 (Chambers, J.)

BETSY JIVIDEN, et al.,

Defendant.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO EARL EDMONDSON

Defendants, by counsel, pursuant to Rule 56 of the Federal Rules of Civil Procedure, have

moved this Honorable Court for summary judgment with regard to the claims of Earl Edmondson

as set forth in the accompanying Motion for Summary Judgment. For the reasons set forth below,

this Plaintiff’s claims should be dismissed with prejudice.

STATEMENT OF FACTS Plaintiff Earl Edmondson is currently housed at the Pruntytown Correctional Center (“Pruntytown”) in Taylor County, West Virginia. See Deposition of Mr. Edmondson attached as Exhibit 2 at p. 7. Pruntytown is a prison and not a jail. Mr. Edmonson has been at Pruntytown since February 13, 2020. Mr. Edmondson is now serving a sentence for an unlawful assault that occurred in Ohio County. Id. at p. 8 and Exhibit 1. Mr. Edmondson is 76 years old and claims to suffer from PTSD, chronic sinus issues, and a bulging disc in his back. See Second Amended Complaint (Doc. 67) at ¶ 106. He also claims that he has been diagnosed with bone cancer. Id. at ¶ 107. He further claims that he has lost his teeth and that he requires dentures which he does not have. Id. at ¶ 108. His primary medical complaints from his stay at NRJ are: 1) that he went for three months without Buspar for his PTSD

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(Id. at ¶ 114); 2) that he went for three months without antibiotics for his chronic sinus condition (Id. at ¶ 115); 3) that the facility would not fetch his dentures from an outside dental facility (Id. at ¶ 108); and 4) that NRJ would never test or treat him for bone cancer (Id. at ¶ 107).
Regarding his PTSD and the alleged three-month delay before he was treated with Buspar, Mr. Edmondson’s allegations in the Second Amended Complaint are false. As indicated in his medical records, it is clear that he started receiving Buspar on July 31, 2019, which was only about two weeks after his admission to NRJ. See medical records at Bates No. 118383.1
With respect to his chronic sinus complaints, Mr. Edmondson alleges that it took over three months for him to get antibiotics for a recurring sinus infection. See Doc. 67 at ¶ 115. In his deposition, the three-month period was suddenly reduced by Mr. Edmondson to only “a month.” Exhibit 2 at p. 53. This alleged time period is even further reduced when the actual medical records are considered. For example, the medical records demonstrate that plaintiff’s first complaint about a flare up of his chronic sinus problems did not occur until September 30, 2019. See Bates No. 118291. The records clearly demonstrate that he was promptly started on a series of antibiotics (Amoxicillin) only ten days later on October 10, 2019. See Bates No. 118382.
Regarding the issue of dentures, Mr. Edmondson does not claim that he had dentures when he arrived at NRJ. Exhibit 2 at p. 68. Plaintiff was planning to have someone from the outside (his friend “Gerry”) fetch and bring him the dentures but Gerry was allegedly in Florida and therefore could not do this for him. Id. at p. 69. NRJ had no responsibility to obtain Mr. Edmondson’s dentures for him. Dentures only become a medical necessity when an inmate loses weight from not eating properly. Mr. Edmondson admitted in his deposition that he weighed the same when he left NRJ that he did when he arrived. Id. at p. 70.
1 Plaintiff’s medical records are deemed confidential. At the Court’s request, they will be produced under seal or in some other confidential manner.
2

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Mr. Edmondson’s last major complaint is that NRJ repeatedly refused to treat him for alleged bone cancer. See Second Amended Complaint (Doc. 67) at ¶ 107. DCR’s response to that issue is simple. NRJ promptly obtained Mr. Edmondson’s extensive medical records from the VA Hospital but there was no mention of a bone cancer diagnosis in those records. Mr. Edmondson could not explain why a bone cancer diagnosis was not mentioned in his VA medical records. Exhibit 2 at p. 77. There is no competent evidence whatsoever that plaintiff ever had bone cancer.
Mr. Edmondson was very proficient at filing grievances and he filed at least 114 separate grievances on the electronic inmate kiosk in 6 months at NRJ. See grievances, Exhibit 3. These grievances dealt with every medical issue that Mr. Edmondson now raises in this lawsuit and they also dealt with legal issues and issues he had with other inmates. Id. Mr. Edmondson acknowledges that he was well aware of the “appeal” button on the kiosks. Exhibit 2 at p. 102. He also admits that he knew exactly what it meant to “appeal.” Id. However, Mr. Edmondson makes the disingenuous claim that whenever he pressed the appeal button it “erased” it. Id.
STANDARD OF REVIEW Under Rule 56(c), Federal Rules of Civil Procedure, “Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is ‘no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”’ Kitchen v. Summers Continuous Care Center, LLC, 552 F.Supp.2d 589, 592 (S.D. W.Va. 2008). “The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 322-323 (1986). “The nonmoving party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]’” Piedmont Behavioral Health Ctr., LLC v. Stewart, 413 F.Supp.2d 746, 751 (S.D. W.Va. 2006) (Goodwin, J.).
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District Courts in West Virginia have applied this standard in granting motions for summary judgment in appropriate inmate cases involving Eighth Amendment issues related to health care and other matters. See Langley v Arresting Officers,2020 U.S. Dist. LEXIS 56160 (S.D. W.Va. 2020); Smith v PrimeCare Medical, et al., 2020 U.S. Dist. LEXIS 101065 (S.D. W.Va. 2020); and, Salmons v. Western Reg. Jail, 2020 U.S. Dist. LEXIS 97540 (S.D. W.Va. 2020).
ARGUMENT I. PLAINTIFF EARL EDMONDSON’S CLAIMS FOR INJUNCTIVE AND
DECLARATORY RELIEF REGARDING INMATE MEDICAL CARE AT WEST VIRGINIA JAILS ARE MOOT SINCE HE HAS BEEN TRANSFERRED TO A PRISON. This Court has recognized that in prison cases the “prisoner challenging a specified prison policy must have a ‘present interest affected by that policy’ in order to be heard.” S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at p. 4 (quoting Weinstein v. Bradford, 423 U.S. 147, 148 (1975)). The Fourth Circuit has confirmed and implemented this principle through a general rule that “the transfer of an inmate from a unit or location where he is subject to the challenged policy, practice, or condition, to a different unit or location where he is no longer subject to the challenged policy, practice, or condition moots his claims for injunctive and declaratory relief…”. Incumma v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007). See also Rendelman v. Rouse, 569 F.3d 182, 18687 (4th Cir. 2009)(discussing this general rule of mootness and holding that the transfer out of Maryland Division of Corrections custody to federal prison after conviction mooted Plaintiff’s claim for injunctive relief)(internal citations omitted); Incumma, supra (discussing cases supporting the general rule of mootness of declaratory and injunctive relief claims when an inmate is released and finding the inmate’s claims for declaratory and injunctive relief under the First Amendment moot); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)(holding a prisoner
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transfer mooted claims for declaratory and injunctive relief). This is because once removed from the location, the inmate “no longer has a legally cognizable interest in a judicial decision on the merits of his claim.” Incumma, 507 F.3d at 287.
In S.M.B. supra, at pp. 6-7, this Court considered whether an inmate’s claim for injunctive relief was mooted by his parole:
In this case, Plaintiff was paroled on March 28, 2017. While he was purportedly housed in a West Virginia correctional facility at the time he filed his Complaint, this is no longer the case. As Plaintiff is no longer housed in a WVRJCFA facility, he is no longer subject to the prison policy he challenges and, accordingly, has no “present interest affected by that policy.” As a result, the Court FINDS that Plaintiff’s claim for equitable relief against WVRJCFA is moot. In so holding, this Court relied upon the Court of Appeals decision in Incumaa, supra, and other similar decisions. This Court also concluded that none of the exceptions to the mootness doctrine were present in that case. Likewise, in Whitmore v. Western Reg’l Jail, 2019 U.S. Dist. LEXIS 133646 (S. D. W. Va. July 19, 2019), Magistrate Eifert reviewed a pro se inmate complaint regarding conditions at Western Regional Jail and found that the inmate’s transfer to a different correctional facility effectively mooted his claim for injunctive relief, that no exception applied and dismissed his claim for injunctive relief. Id. at pp. 11-13. This Court accepted and incorporated Magistrate Eifert’s findings and recommendation and dismissed the complaint with prejudice. Whitmore v. W. Reg’l Jail, 2019 U.S. Dist. LEXIS 132230 (S. D. W. Va. August 7, 2019). This case, like S.M.B. and Whitmore, should be dismissed as moot because Plaintiff Edmondson is no longer an inmate of a Regional Jail governed by the policies challenged in the Second Amended Complaint. At the time the Second Amended Complaint was filed on December 19, 2019, Plaintiff was incarcerated at Northern Regional Jail. Doc. 67 at ¶ 16. Mr. Edmondson, was transferred from the Northern Regional Jail to the Pruntytown Correctional Center on or about February 13, 2020 to serve his one to five year sentence. See Exhibit 1 at ¶ 2(e). Because Plaintiff
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Edmondson is no longer incarcerated in a West Virginia Regional Jail facility as he has been transferred to Pruntytown, he does not have a present interest affected by any of the challenged policies, practices or conditions raised in the Second Amended Complaint. No exceptions to the mootness doctrine should apply.
II. PLAINTIFF EARL EDMONDSON HAS NOT EXHAUSTED HIS ADMINISTRATIVE REMEDIES AS TO ANY CONDITION OF CONFINEMENT REFERENCED IN THE SECOND AMENDED COMPLAINT AND THEREFORE, IT SHOULD BE DISMISSED.
Plaintiff Earl Edmondson failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995, ("PLRA"), 42 U.S.C. § 1997 et seq. prior to seeking judicial redress. All of Plaintiff’s claims related to an alleged failure to provide medical and mental health treatment to inmates upon admission to a Regional Jail should be dismissed because prisoners are required to exhaust their administrative remedies in making complaints regarding prison treatment prior to bringing an action in court. That requirement was not met for any of Plaintiff Edmondson’s claims. Likewise, any claim for a failure to accommodate a disability or claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12133 (“ADA”) is subject to the PLRA’s exhaustion requirements. Specifically, Defendants argue that Plaintiff failed to do the following: (1) provide evidence of exhaustion; (2) timely appeal the decisions; and (3) grieve or exhaust issues related to medical treatment prior to the filing of the Second Amended Complaint. Further, there are no issues of fact regarding whether the grievance process is "available" to Plaintiff Edmondson.
The PLRA, 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The term “prison conditions” as utilized by the PLRA is defined as “...conditions of confinement or the effects of actions by government officials on the lives of persons confined
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in prison, but does not include habeas corpus proceedings.” 18 U.S.C. § 3626(g)(2). In Porter v. Nussle, 534 U.S. 516, 531 (2002), the United States Supreme Court held that “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”
“Not only must a prisoner exhaust his administrative remedies, but he must also do so properly.” Wells v. Parkersburg Work Release Ctr., 2016 U.S. Dist. LEXIS 21026, 2016 WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 U.S. Dist. LEXIS 20459, 2016 WL 707457 (S.D. W. Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)).
If a plaintiff fails to exhaust his or her administrative remedies under the PLRA, then the defendant is entitled to judgment as a matter of law. Legg v. Adkins, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017). Whether an administrative remedy has been exhausted for purposes of the PLRA “is a question of law to be determined by the judge.” Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, 2017 WL 4004579, at *3 (S.D. W. Va. 2017) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)). Thus, disputed questions of fact regarding exhaustion of administrative remedies are resolved by the court. See id 2
2 Like the PLRA, the WVPLRA “require[s] inmates to exhaust their administrative remedies before they bring a lawsuit.” Legg v. Adkins, No. 2:16-cv-01371, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017) (citing 42 U.S.C. § 1997e(a); W. Va. Code § 25-1A-2a(i)). Under the WVPLRA, “[a]n inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted.” W. Va. Code § 25-1A-2(c). The WVPLRA defines an ordinary administrative remedy as “a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life. . . .which includes health care” Id. § 25-1A-2(a). This Court should conclude that Plaintiff Edmonson also failed to exhaust his grievances under the WVPLRA as well.
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The West Virginia Division of Corrections and Rehabilitation (WVDCR) provides a grievance procedure in order to ensure direct access to an administrative remedy for inmates regarding all aspects of their confinement, including claims for medical care and conditions of confinement. The Inmate Handbook sets forth the formal process through which an inmate may seek “redress over any matter concerning prison life.” Exhibit 4, excerpts of Inmate Handbook for Regional Jail Inmates. Under Grievance Procedures outlined in the Inmate Handbook, an inmate may file a grievance to administrator/superintendent and, if unsatisfied by the response or if the response is not timely received in the manner prescribed by policy, the inmate may appeal to the Chief of Operations. Id. If the inmate is still not satisfied a third level of administrative oversight is included in the policy: an appeal to the Commissioner of WVDCR. Id.
While the PLRA requires administrative exhaustion prior to an inmate seeking judicial resolution of a complaint, an inmate is only required to exhaust those administrative remedies which are actually available. 42 U.S.C. § 1997e(a)) (“The PLRA, however, requires exhaustion of only ‘such administrative remedies as are available.’”). "The availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is “on the books.” Ross v. Blake, 136 S. Ct. 1850 , 1859, 195 L. Ed. 2d 117 (2016)). Rather, a remedy is available only if it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
The Supreme Court noted three specific instances in which a remedy would not be “available” for purpose of PLRA exhaustion. Id. “First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross 136 S. Ct. at 1859, (citing Booth, 532 U.S. at 736, 738). Second, “an administrative
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scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Id. “[W]hen a remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable.” Id. Finally, the third scenario in which the Supreme Court would find a remedy unavailable is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, once the defendant has made a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff. Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, *11, 2017 WL 4004579 (S. D. W. Va. 2017).
Here, Plaintiff Edmondson alleges that he did not receive adequate medical or mental health care while incarcerated at Northern Regional Jail (“NRJ”) and this appears to form the basis for both Count I and Count II of the Amended Complaint. Specifically, Mr. Edmondson alleges: 1) that he went for three months without Buspar medication for his PTSD (Id. at ¶ 114); 2) that he went for three months without any antibiotic treatment for his chronic sinus condition (Id. at ¶ 115); 3) that the facility would not fetch his dentures from an outside dental facility (Id. at ¶ 108); and 4) that NRJ would never test or treat him for bone cancer (Id. at ¶ 107). Plaintiff makes these allegations in the Second Amended Complaint filed on December 19, 2019. (Doc 67).
Plaintiff’s suit is subject to the requirement that all administrative remedies be exhausted prior to filing suit, here December 19, 2019. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003). Here, Plaintiff Edmondson filed approximately one hundred fifteen grievances on the kiosk and four handwritten grievances. Exhibit 3. Ten of these
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were filed after suit was commenced. The grievances dealt with every medical issue that Mr. Edmondson now raises in this lawsuit. Id.
Clearly, Mr. Edmondson was very proficient at filing grievances and he acknowledges that he was well aware of the “appeal” button on the kiosks. Exhibit 2 at p. 102. He also admits that he knew exactly what it meant to “appeal.” Id. In fact, he appealed grievances on at least four occasions. Furthermore, Plaintiff Edmondson accessed and viewed the Inmate Handbook at least once, which is the same kiosk used to file grievances. See Exhibit 5, inmate kiosk view log. The inmate rulebook and the grievance process are also readily available via electronic means on the Kiosk. See Exhibit 6, kiosk screenshot. Mr. Edmondson simply did not exhaust his administrative remedies with regards to the claims relevant to this lawsuit.
Looking at this evidence as a whole, the Court must conclude that there are no genuine issues of material facts regarding whether the grievance process is available to Plaintiff Edmondson and whether he properly exhausted the administrative remedies prior to bringing this issue before this Court. Plaintiff routinely utilized the grievance process during his incarceration, he just did not utilize the grievance process to properly exhaust his remedies related to his medical claims in this case which are the basis of both Count I and Count II of the Complaint. Therefore, the grievance process cannot be considered “unavailable” because he successfully filed over one hundred grievances in total. Instead, Plaintiff simply failed to exhaust the administrative remedies available to him via the grievance procedure set forth in the Inmate Handbook. "[T]he PLRA[']s exhaustion requirement requires proper exhaustion" to include all steps that the agency has established and doing so consistent with the instructions provided. Woodford v. Ngo, 548 U.S. 81, 90 & 93 (2006). For these reasons, Defendants are entitled to summary judgment as a result of Plaintiff Edmondson’s failure to exhaust his administrative remedies under the PLRA.
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III. THIS COURT SHOULD CONCLUDE AS A MATTER OF LAW THAT ALL OF THE DELIBERATE INDIFFERENCE CLAIMS FOR LACK OF MEDICAL AND MENTAL HEALTH TREATMENT UNDER COUNT I OF THE SECOND AMENDED COMPLAINT ARE WITHOUT MERIT.
Although an inmate is plainly entitled to receive adequate medical and mental health care while incarcerated, no inmate is entitled to receive, nor may he or she insist, that the State of West Virginia provide him with, the most sophisticated care that money can buy. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.1987). Rather the constitution only requires that certain minimum standards of medical and mental health treatment are met, “not that they cater to the individual preference of each inmate.” Chase v. Quick, 596 F. Supp. 33, 35 (D.R.I. 1984). Deliberate indifference to a serious medical or mental health need of an inmate, including psychiatric care, can constitute unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976).
To adequately plead and prove an Eighth Amendment claim of deliberate indifference to the medical or mental health needs of an inmate, Plaintiff Edmondson must satisfy a two-part test comprised of both objective and subjective components. First, Plaintiff must prove that the alleged deprivation of mental health treatment was “objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In order to satisfy the objective prong in a conditions of confinement claim, the prisoner must “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions,” or “demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions.” Importantly, “only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim.” Shakka v. Smith, 71 F.3d 162 (4th Circ. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 8-9 (1993)).
Second, Plaintiff Edmonson must demonstrate by competent, reasonable, and admissible
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evidence that the prison official had “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3. This subjective prong of the test requires Plaintiff to prove that Defendants had actual knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. Only when the official is “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [draws] the inference[]” does the requisite degree of culpability exist to satisfy the second element of the inquiry. Id. Neither negligence nor medical malpractice in diagnosis or treatment of an inmate’s medical/mental health condition may give rise to an Eighth Amendment deliberate indifference claim.
Importantly, the Fourth Circuit reviews Eighth Amendment claims based on the totality of the circumstances. See, Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir. 1976); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 865 (4th Cir. 1975). This Court followed this same deliberate indifference standard related to the COVID-19 conditions at West Virginia Regional Jails and Prisons in its April 8, 2020, Order in this case denying the preliminary injunction, Doc. 183 at pp. 13-14, as the Court found that the inmates could not meet that standard.
This Court’s decision on COVID-19 is well-reasoned and it equally applies in this instance. Just as Defendants had a plan to deal with the coronavirus, Defendants have a contract to deal with medical and mental health needs in this case. As set forth in Commissioner Jividen’s affidavit (Exhibit 7):
DCR contracts with PrimeCare Medical, Inc. to provide health care to inmates at nine of the Regional Jails, all except for Northern Regional Jail. Health care is provided to inmates at Northern through Wexford Health Sources, Inc. Wexford also provides health care for all of the inmates at the Correctional Centers. Pursuant to the contracts, PrimeCare and Wexford are required to provide the proper staffing and adequate health care for inmates at their respective facilities.
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Id. at ¶ 4. The Court has further been provided with copies of the contracts with PrimeCare and Wexford for its review.
A. Plaintiff Edmondson Has Failed to Establish that Defendants were Deliberately Indifferent to a Substantial Risk of Serious Harm to Plaintiff.
Plaintiff Edmondson cannot establish facts sufficient to proceed under § 1983 as to the objective prong of Farmer v. Brennan, supra. Under that prong, the Second Amended Complaint must allege that specific prison officials were deliberately indifferent to a risk of serious harm to the Plaintiff. Even assuming, arguendo, that Plaintiff Edmonson had properly pled the requisite "serious deprivation" for an Eighth Amendment claim, Plaintiff cannot establish sufficient facts to establish the requisite “deliberate indifference” specifically as to Defendants.3 As Commissioner Jividen has set forth in her affidavit, she is not a licensed healthcare provider and Defendants have no role in the delivery of healthcare in the Regional Jails. Exhibit 7 ¶¶ 8-9.
Deliberate indifference requires a showing that the official was subjectively aware of a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (U.S. 1994). In order to possess this level of culpability, “the official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id. To be liable, the prison officials must actually know of and disregard the risk. Id. at 837.
The Fourth Circuit has characterized the deliberate indifference standard as an “exacting one. Lightsey, 775 F.3d at 178.” Jones v. Chapman, 2017 U.S. Dist. LEXIS 87907 at *87-91 (D. Md. June 7, 2017). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness . . .” Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at
3 The only parties with the requisite knowledge regarding the delivery of medical and mental health care that should have been sued here, but were not, are PrimeCare and Wexford. This Court may note that the Defendants tried to join them as third-party defendants earlier, but the Plaintiffs opposed this joinder, and this Court agreed. Doc. 110.
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225; Russell v. Sheffer, 528 F.2d 318, 319 ( 4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986).” Id. “Deliberate indifference is a very high standard-a showing of mere negligence will not meet it .. . [T]he Constitution is designed to deal with deprivations of rights, not errors in judgments, even though such errors may have unfortunate consequences . . .” Grayson v. Peed, 195 F.3d 692, 695-96 ( 4th Cir. 1999).
Magistrate Tinsley, writing for this district, recently addressed a very similar situation regarding medical care for an inmate in a proposed findings and recommendations for disposition in Greene v. Ballard, 2020 U.S. Dist. LEXIS 59180 (S.D. W.V. 2020), aff’d. 2020 U.S. Dist. LEXIS 53023 (S.D. W.V. 2020). In examining the second factor under the Farmer decision, Magistrate Tinsley at pp. 26-27, stated:
Defendants Ballard, Frame, Clifford, Mitchell, and Snyder appear to be correctional or administrative staff, and not licensed healthcare providers. The Second Amended Complaint does not specifically allege that any of these defendants interfered with the treatment being provided to Greene for his medical needs. To the extent that the Second Amended Complaint alleges that Greene was denied the ability to attend follow-up outside doctor's appointments, he has failed to specifically identify which defendant or defendants made those decisions. …Thus, the Second Amended Complaint falls woefully short of sufficiently pleading the subjective component necessary to state a plausible claim of deliberate indifference on this basis. This Court should consider the decision in Greene and the deliberate indifference standard and reach a similar conclusion. In the instant matter, Plaintiff has made allegations against Defendants that they were deliberately indifferent to his medical needs based on the medical care he received. It is undisputed in this case that none of those specific care allegations relate to any conduct by Defendants, instead they appear to be grounded in policies. There is no indication that Defendants were either 1) aware of the specific allegations of Plaintiff (nor could there be because he failed to properly follow the administrative procedure in place) and 2) that they were aware or intended for the policies to be
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an excessive risk to any inmate. Plaintiff has not identified a specific policy or procedure that
Defendants knew was inappropriate under the deliberate intent standard and therefore Plaintiff
cannot show “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3 nor can he show
that Defendants had an actual knowledge of and disregard for the “excessive risk to inmate health.”
Farmer, 511 U.S. at 837. This Court should determine as a matter of law that Plaintiff has wholly
failed to martial the necessary fact to establish deliberate indifference on the part of Defendants.
As such, all claims under Count I of the Second Amended Complaint must be dismissed.
B. Defendants have required that PrimeCare and Wexford Maintain NCCHC Accreditation and this Court Should Rule as a Matter of Law that Meeting NCCHC’s Standards are Substantial Evidence of Compliance with the Constitutional Standards of Deliberate Indifference.
As set forth in Commissioner Jividen’s affidavit: [as] a part of the contracts, each health care facility operated by PrimeCare and Wexford are required to be accredited by National Commission on Correctional Health Care ("NCCHC"), a nationally recognized organization with the mission of improving the quality of health care in prisons. Every couple of years the NCCHC does a thorough audit of each facility and they review compliance with 39 essential standards and 20 important standards. The NCCHC requires 100% compliance with the essential standards for a facility to receive its accreditation. If you are not in full compliance with the essential standards, a contingent approval is provided and the facility is given a period of time to meet all of the essential standards.
Exhibit 7 at ¶ 5. In ¶¶ 6-7 of her affidavit, she further attests that all nine of the PrimeCare
Regional Jail health care facilities have met the NCCHC accreditation standards and Wexford has
received contingent approval for its health care facility at Northern Regional Jail.
The District Court in Balla v. Idaho State Board of Corrections, 2020 U.S. Dist. LEXIS
95915 (D. Idaho 2020) recently examined the NCCHC standards in an Eighth Amendment
deliberate indifference case related to medical and mental health for inmates that has been ongoing
for almost 40 years. In that case, the district court discussed at length the NCCHC standards and
considered them as evidence of compliance with the Eighth Amendment deliberate indifference
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standard. The district court made clear that the NCCHC standards, as “best practices” are not the “constitutional floor” but something to be considered along with the fact in the case. Id. at p. 29. Based upon the foregoing and the evidence in the case, the district court dismissed the case. Likewise, in this case, this Court should consider the NCCHC standards for accreditation and the evidence in the case, and conclude as a matter of law that all claims under Count I of the Second Amended Complaint must be dismissed against Defendants.
C. ALL CLAIMS UNDER COUNT II OF THE SECOND AMENDED COMPLAINT RELATED TO THE AMERICANS WITH DISABILITY ACT SHOULD BE DISMISSED AS A MATTER OF LAW.
Plaintiff’s claims in Count II of the Second Amended Complaint fall under Title II of the Americans with Disabilities Act (“ADA”) likewise fail. In order to present a claim under the ADA, Plaintiff must establish: “(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program or activity; and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against on the basis of their disability.” Gordon v. Tygart Valley Reg’l Jail, 2013 U.S. Dist. LEXIS 28444 (N.D. W. Va. 2013)(citing Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 498 (4th Cir. 2005)).
First, out of an abundance of caution, because there is some vagueness as to the basis of the Plaintiff’s ADA allegations based on the discovery to date, to the extent that Count II attempts to assert a claim against either Defendant under Title II of the ADA based on allegations that do not implicate constitutional rights, those claims are barred by sovereign immunity. See Sims v. Marano, 2020 U.S. Dist. LEXIS 20384 at 14-15 (W.D. Va. 2020)(Mem. Op.)(citing United States v. Georgia, 546 U.S. 151 (2006) and Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007)). To the extent that Count II attempts to assert a Title II claim under the ADA against Defendant
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Jividen in her official capacity, those claims are limited to prospective injunctive relief. Id. at 17. Second, with regard to Title II clams under the ADA that are based on alleged constitutional
violations, for the purposes of this Motion only, Defendants will assume Plaintiffs can meet the threshold to be considered disabled. However, even assuming, arguendo, that Plaintiff is disabled under this standard “courts routinely dismiss ADA suits by disabled inmates that allege inadequate medical treatment, but do not allege that the inmate was treated differently because of his/ her disability.” Gordon, supra, at 10. The Court found “it is not enough, in asserting a Title II discrimination claim under the ADA, for the Plaintiff to show that he received inadequate care in light of his disability. He must demonstrate that he was excluded from participation in a program or activity, or otherwise discriminated against, on the basis of his disability.” Id. at 12. In this case, Plaintiff Edmondson cannot demonstrate such discrimination or that a request for accommodation that was denied and appealed through the required administrative process.
Plaintiff Edmondson generally claims that he did not receive necessary accommodations for his disabilities to enable him to participate in jail life in the same manner as non-disabled inmates. Doc. 67 at ¶ 185. In addition, he has alleged that Plaintiffs were discriminated against by failing to provide reasonable accommodations. Id. at ¶ 186. He further appears to allege that the Defendants’ policies do not provide for appropriate medical treatment, including mental health services, “immediately upon entry to the State jails” and that this is a violation of the ADA and is discrimination against the Plaintiffs. Id. at ¶ ¶ 257 and 258. See also Id. at ¶ 255.
To the extent that Plaintiff attempts to argue that his ADA claims are based on the same facts as the allegations related to the claim of deliberate indifference discussed supra, Plaintiff’s argument fails. Plaintiff Edmonson’s Second Amended Complaint does not allege that he is receiving different medical care because of his disability. Accordingly, any claim related to
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medical care appears to be that the medical care received was inadequate. At set forth above, the Second Amended Complaint allegations related to medical care fail to meet the deliberate indifference standard and must be dismissed. Regardless, it is well settled that a claim of inadequate medical care is insufficient to establish a claim under the ADA. See Gordon, supra. See also Mondowney v. Balt. Cty. Det. Ctr., 2019 U.S. Dist. LEXIS 119566, p. 58-59 (D. Md. 2019)(discussing cases finding that a lack of medical treatment does not violate rights under the ADA); Spencer v. Easter, 109 F. Appx. 571, 773 (4th Cir. 2004)(failure to provide timely medication refills not an ADA violation); Bryant v. Madigan, 84 F. 3d. 246, 249 (7th Cir. 1996)(ADA not violated by a simple failure to attend to the medical needs of disabled prisoners).
Plaintiff Edmonson has failed to articulate how he has been treated differently because of his alleged disabilities with regard to any jail program or service. Plaintiff has not identified any program or service that that he sought to participate in and was denied entry based on his disability. The issue picking up dentures was raised, however, he has not demonstrated that the same were medically necessary and so this fails to state a claim under the ADA. See e.g. Hay v. Thaler, 470 Fed. Appx. 411 (5th Cir. 2012)(unpublished).
The remaining allegations in the Second Amended Complaint are generally stated as a lack of accommodation and a general reference to policies. However, when asked in discovery to identify any evidence of an ADA violation, Plaintiff provided no specific information, he simply objected to the timing, calling the interrogatory an “improper block buster request, and calls for a legal conclusion that Plaintiff is not qualified to answer,” and, notwithstanding that objection and without waiving the same, he identified his medical conditions but no specific policy, program, accommodation or other specific alleged ADA violation. Exhibit 8, Plaintiff’s Response to Defendants’ Interrogatory No. 21. To the extent that the allegations at issue are related to an
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accommodation for a disability, even general accommodations, they are subject to the exhaustion requirements of the PLRA. See e.g. O’Guinn v. Lovelock Corr. Ctr. 502 F.3d 1056, 1061-62 (9th Cir. 2007)(discussing plain language of PLRA requiring exhaustion of administrative remedies before bringing ADA and Rehabilitation Act claims); Corpening v. Hargrave, 2015 U.S. Dist. 80447, 10-11 (W. D. N.C. 2015) (same). As discussed supra, Plaintiff failed to exhaust the available administrative remedies for any requested accommodation prior to filing a lawsuit and so his claims must be dismissed as a matter of law.
Finally, even assuming, arguendo there were a failure to accommodate the Plaintiff or a violation of the ADA, which is denied, that past failure without continuing, present adverse effects for this Plaintiff and does not constitute a basis for “a present case or controversy regarding injunctive relief.” Sims, supra, at 17-18 (W. D. Va. 2020)(Mem. Op.)(citing O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) in evaluating an inmate’s pro se claims that his rights were violated under the ADA and noting that, inter alia, a claim related to the denial of a prosthetic leg under the ADA – which had been previously dismissed for failure to state a claim – could not be the basis for injunctive relief when he received a prosthetic leg after the lawsuit was filed because it was a prior harm). As such because Plaintiff Edmondson is no longer subject to any policy or lack of accommodation at a West Virginia Regional Jail, his claims cannot be the basis for the prospective injunctive relief sought and should be dismissed.
VI. COUNT I OF THE SECOND AMENDED COMPLAINT MUST BE DISMISSED AGAINST WVDCR SINCE IT IS NOT A PERSON.
WVDCR is entitled to dismissal under Count I of the Second Amended Complaint as a matter of law because it is not a “person” subject to suit in this court under 42 U.S.C. § 1983. That section provides a remedy to parties who are deprived of protected civil rights by “persons” acting under color of any state “law, statute, ordinance, regulation, custom, or usage.” The Supreme
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Court in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) held that a state nor its agencies are “persons” under § 1983. The Fourth Circuit has confirmed that it is “well settled” that a state or a state agency are not “persons” as required under 42 U.S.C. § 1983. See e.g Kelly v. State, 2007 U.S. Dist. LEXIS 95954 (D. Md. 2007) aff’d 267 F. App'x 209, 210, 2008 U.S. App. 1226 (4th Cir. 2008) (recognizing that it has been “well settled” that the state cannot be sued under 42 U.S.C. § 1983 and noting that “[a] cause of action under § 1983 requires the deprivation of a civil right by a “person” acting under color of state law.)
Court I against WVDCR clearly falls within the category of attempted § 1983 actions that cannot be brought under § 1983 because WVDCR is not a person. In similar cases, the State and its agencies have been found not to be “persons” under § 1983 and have been dismissed from suit. See Cochran v. W. Va. Reg'l Jail & Corr. Facility Auth., 2014 U.S. Dist. LEXIS 89893, at *8 (S.D. W.Va. 2014)(holding W.Va. Regional Jail and Correctional Facility Authority, the predecessor to WVDCR, is a state agency and that no § 1983 action could be brought against it) and Black v. West Virginia, 2019 U.S. Dist. LEXIS 172020, at *10-12 (S.D. W.Va. 2019)(holding the State was entitled to dismissal because it is not a “person” subject to liability or suit under § 1983). This Court as a matter of law should dismiss WVDCR from Count I of the Second Amended Complaint.
CONCLUSION WHEREFORE, based upon the foregoing, Defendants respectfully requests that this Court dismiss as moot Earl Edmonson’s claims for declaratory and injunctive in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
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Respectfully submitted on behalf of Defendants:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
21

 
 Case 3:18-cv-01526 Document 271 Filed 07/17/20 Page 1 of 4 PageID #: 5004

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO DANNY SPIKER

NOW COMES the Defendant Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, in her official capacity only, and the West Virginia Division of

Corrections and Rehabilitation (“WVDCR”), by counsel, Webster J. Arceneaux, III, James C.

Stebbins, and Valerie H. Raupp of Lewis Glasser PLLC and Briana J. Marino, Assistant Attorney

General for the State of West Virginia, pursuant to Rule 56 of the Federal Rules of Civil Procedure,

and they moves this Honorable Court for summary judgment with regard to the claims of Danny

Spiker as set forth herein as follows:

1. Plaintiff Danny Spiker is a named plaintiff in the above styled civil action. At the time the Second Amended Complaint was filed on December 19, 2019, Mr. Spiker was not incarcerated at any Regional Jail. In October and November, 2019, Mr. Spiker was a pretrial detainee at Tygart Valley Regional Jail, Second Amended Complaint, Doc. 67 ¶ 21.

2. Mr. Spiker, was transferred to Mildred Mitchell Bateman Hospital in November, 2020. Thereafter he was released and re-arrested and detained at Tygart Valley Regional Jail on or about April 4, 2020. Id.

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3. Plaintiff Spiker clearly state in his Second Amended Complaint that this “is an action on behalf of inmates admitted to jail facilities throughout West Virginia . . . Plaintiffs seek to ensure that jails in West Virginia promptly provide appropriate and necessary medical and mental health treatment to inmates upon admission, . . .” Id. at ¶ 1.
4. This Court should dismiss the claims of Plaintiff Spiker for failure to exhaust his administrative grievance remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
5. This Court should likewise dismiss the deliberate indifference claims in Count I under the Eighth and Fourteenth Amendments, United States Constitution, under 42 U.S.C. § 1983, finding that Plaintiff Spiker does not have sufficient evidence to support his Count I claims.
6. In addition, it is undisputed that all ten Regional Jails in West Virginia are certified by the National Commission on Correctional Health Care (“NCCHC”). This Court should conclude as a matter of law that NCCHC certification indicates that the ten Regional Jails in West Virginia meet the deliberate indifference standards under the Eighth and Fourteenth Amendments, United States Constitution, United States Constitution, and all claims by Plaintiff Spiker under Count I should be dismissed.
7. This Court should likewise dismiss the Count II claims under the Americans with Disability Act (“ADA”), 42 U.S.C § 12132, finding that neither Plaintiff Spiker or any other Plaintiffs have sufficient evidence to support their ADA claims under Count II.
8. Finally, this Court should at a minimum conclude that the claims in Count I under 42 U.S.C. § 1983 should be dismissed against WVDCR since it is not a person under that provision.
WHEREFORE, based upon the foregoing, as more fully discussed in the Memorandum of Law in Support, Defendants respectfully request that this Court enter an order dismissing Plaintiff
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Danny Spiker’s claims for declaratory and injunctive under Count I and II of the Second Amended Complaint in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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Case 3:18-cv-01526 Document 271 Filed 07/17/20 Page 4 of 4 PageID #: 5007

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 17th day of July 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AS TO DANNY SPIKER” and the “MEMORANDUM OF
LAW IN SUPPORT” via the CM/ECF system that will send notification to the following counsel
of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 272 Filed 07/17/20 Page 1 of 20 PageID #: 5639

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendant.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO DANNY SPIKER

Defendants, by counsel, pursuant to Rule 56 of the Federal Rules of Civil Procedure, have moved this Honorable Court for summary judgment with regard to the claims of Danny Spiker as set forth in the accompanying Motion for Summary Judgment. As discussed herein, there can be no genuine or material dispute of fact that Plaintiff failed to exhaust his administrative remedies with regard to each of his claims and thus they must fail. In addition, Plaintiff Spiker’s claims in Counts I and II of the Amended Complaint fail as a matter of law based on the undisputed facts. Accordingly, for these and other reasons set forth below, this Plaintiff’s claims should be dismissed with prejudice.

STATEMENT OF FACTS Mr. Spiker was admitted to Tygart Valley Regional Jail (“TVRJ”) in Barbour County, West Virginia on October 31, 2019. See Second Amended Complaint (Doc. 67) at ¶ 46. He generally alleges that he has been diagnosed since childhood with bi-polar disorder and attention deficit hyperactivity disorder (ADHD), has been hospitalized in mental health facilities on a number of occasions, and that he has a history of suicidal ideation. Id. at ¶ 45. Mr. Spiker alleges that when he first arrived at TVRJ, he was suicidal and told the intake

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personnel that he was suicidal. Id. at ¶¶ 47-48. Plaintiff alleges that he got no medical intake at that time and was instead placed in a holding cell with a number of other inmates where he suffered a panic attack. Id. at ¶ 50. He was then transported to a local hospital for evaluation. Id. at ¶ 50. Mr. Spiker then claims that he intentionally hit his head on the corner of a desk at the hospital in an attempt to injure himself, was given liquid stitches, and then returned to TVRJ. Id. at ¶ 51.
Plaintiff alleges that upon his return, he was placed in a “pickle suit” (a green suit for suicidal inmates) and placed alone in a cell on suicide watch. Id. at ¶ 52. Plaintiff alleges that despite being put on “fifteen minute suicide watch,” he was not appropriately monitored in the cell and rubbed his wound until it reopened and was bleeding. Id. at ¶ 55. Mr. Spiker then alleges that he “picked at his wounds for over three hours” and was finally discovered by jail staff on the floor in a pool of blood. Id. at ¶ 56. He alleges that he was then taken back to the local hospital where his wound was rebandaged and he returned to TVRJ and was placed in a restraint chair for eight hours. Id. at ¶ 57. He was then allegedly placed on suicide watch in a different single cell for several days without being seen or evaluated by a mental health worker. Id. at ¶ 59
Plaintiff alleges that when he was seen by a mental health worker several days later, the worker asked him if he was suicidal and released him from suicide watch with no other evaluation or treatment. Id. at ¶ 60. Mr. Spiker claims that he was then released into general population in a cell on the top tier of his cell block. Id. at ¶ 61. Mr. Spiker alleges that he then attempted (unsuccessfully) to hang himself from the balcony of his cell block using a rope made out of a sheet. Id. at ¶ 62.
Shortly thereafter, Mr. Spiker was committed to Mildred Mitchell Bateman Hospital (a state psychiatric hospital) in Huntington, West Virginia. Id. at ¶ 64. Plaintiff alleges that he started
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taking medications at this hospital and that it quickly alleviated his suicidal ideations.1 STANDARD OF REVIEW
Under Rule 56(c), Federal Rules of Civil Procedure, “Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is ‘no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”’ Kitchen v. Summers Continuous Care Center, LLC, 552 F.Supp.2d 589, 592 (S.D. W.Va. 2008) (quoting Fed.R.Civ.P. 56(c)). “The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 322-323 (1986). “When determining whether there is an issue for trial, the Court must view all evidence in the light most favorable to the non-moving party.” Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123 (4th Cir. 1990). “The nonmoving party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]’” Piedmont Behavioral Health Ctr., LLC v. Stewart, 413 F.Supp.2d 746, 751 (S.D. W.Va. 2006) (Goodwin, J.) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
District Courts in West Virginia have applied this standard in granting motions for summary judgment in appropriate inmate cases involving Eighth Amendment issues related to health care and other matters. See Langley v Arresting Officers,2020 U.S. Dist. LEXIS 56160 (S.D. W.Va. 2020); Smith v PrimeCare Medical, et al., 2020 U.S. Dist. LEXIS 101065 (S.D. W.Va. 2020); and, Salmons v. Western Regional Jail, 2020 U.S. Dist. LEXIS 97540 (S.D. W.Va. 2020). Based upon this foregoing standard, Defendants respectfully represent that the instant
1 Plaintiff Spiker has had issues arising after the filing of the Second Amended Complaint that Defendants contend are irrelevant to this proceeding. These involved apparent attempts to self-harm including an incident on April 6, 2020 where he wrapped a towel around his neck and threatened to kill himself, an incident on April 9, 2020 in which he threw himself to the ground, and an incident on April 17, 2020 where he intentionally ran into a cell door and was placed in a restraint chair.
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Motion for Summary Judgment should be granted as a matter of law. As set forth below, even assuming Plaintiff’s allegations are true, as a matter of law, Defendants cannot be held liable for the remaining allegations as set forth in Counts I and II of the Second Amended Complaint.2
ARGUMENT I. PLAINTIFF DANNY SPIKER HAS NOT EXHAUSTED HIS
ADMINISTRATIVE REMEDIES AS TO ANY CONDITION OF CONFINEMENT REFERENCED IN THE SECOND AMENDED COMPLAINT AND THEREFORE, IT SHOULD BE DISMISSED. Plaintiff Danny Spiker failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995, ("PLRA"), 42 U.S.C. § 1997 et seq. prior to seeking judicial redress. Defendants argue that all of Plaintiff’s claims related to the alleged failure by Defendants to provide medical and mental health treatment to inmates upon admission to a Regional Jail should be dismissed because prisoners are required to exhaust their administrative remedies in making complaints regarding prison treatment prior to bringing an action in court and that requirement was not met for any of Plaintiff Spiker’s claims. Likewise, any claim for a failure to accommodate a disability or claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12133 (“ADA”) is subject to the PLRA. See discussion infra. Specifically, Defendants argue that Plaintiff Spiker failed to do the following: (1) provide evidence of exhaustion; (2) timely appeal the decisions; and (3) grieve or exhaust issues related to medical treatment prior to the filing of the Second Amended Complaint. Further, there are no genuine issues of material fact regarding whether the grievance process is "available" to Plaintiff Spiker. The PLRA, 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
2 This Court may note that only the allegations in Counts I and II of the Second Amended Complaint remain as the parties stipulated to the dismissal of the conditions of confinement allegations in Count III of the Second Amended Complaint. Doc. 223.
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in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The term “prison conditions” as utilized by the PLRA is defined as “...conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings.” 18 U.S.C. § 3626(g)(2). In Porter v. Nussle, 534 U.S. 516, 531 (2002), the United States Supreme Court held that “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” The exhaustion requirement also applies regardless of the relief sought by the inmate through the administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001).
“Not only must a prisoner exhaust his administrative remedies, but he must also do so properly.” Wells v. Parkersburg Work Release Ctr., 2016 U.S. Dist. LEXIS 21026, 2016 WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 U.S. Dist. LEXIS 20459, 2016 WL 707457 (S.D. W. Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)).
If a plaintiff fails to exhaust his or her administrative remedies under the PLRA, then the defendant is entitled to judgment as a matter of law. Legg v. Adkins, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017). Whether an administrative remedy has been exhausted for purposes of the PLRA “is a question of law to be determined by the judge.” Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, 2017 WL 4004579, at *3 (S.D. W. Va. 2017) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)). Thus, disputed questions of fact regarding exhaustion of administrative remedies are resolved by the court. See id. The benefits of requiring
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exhaustion “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88-91 (2006)).3
The West Virginia Division of Corrections and Rehabilitation, formerly the West Virginia Regional Jail and Correctional Facility Authority,4 provides a grievance procedure in order to ensure direct access to an administrative remedy for inmates regarding all aspects of their confinement, including claims for medical care and conditions of confinement. The Inmate Handbook sets forth the formal process through which an inmate may seek “redress over any matter concerning prison life.” Exhibit 1, Excerpts of Inmate Handbook for Regional Jail Inmates. Under Grievance Procedure outlined in the Inmate Handbook, an inmate may file a grievance to administrator/superintendent and, if unsatisfied by the response or if the response is not timely received in the manner prescribed by policy, the inmate may appeal to the Chief of Operations. Id. Again, if the inmate is not satisfied with the response received or does not receive a timely response, a third level of administrative oversight is included in the policy: an appeal to the Commissioner of the Division of Corrections and Rehabilitation (formerly referred to in the policy as the “Executive Director”). Id.
3 Like the PLRA, the WVPLRA "require[s] inmates to exhaust their administrative remedies before they bring a lawsuit." Legg v. Adkins, No. 2:16-cv-01371, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017) (citing 42 U.S.C. § 1997e(a); W. Va. Code § 25-1A-2a(i)). Under the WVPLRA, "[a]n inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted." W. Va. Code § 25-1A-2(c). The WVPLRA defines an ordinary administrative remedy as "a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life. . . .which includes health care" Id. § 25-1A-2(a). This Court should conclude that Plaintiff Spiker also failed to exhaust his grievances under the WVPLRA as well. 4 Per House Bill 4338 (2018) the West Virginia Regional Jail and Correctional Facility Authority was consolidated with the West Virginia Division of Corrections and West Virginia Division of Juvenile Services to form the West Virginia Division of Corrections and Rehabilitation. This newly-formed entity assumed responsibility for the operations of West Virginia regional jails on July 1, 2018.
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While the PLRA requires administrative exhaustion prior to an inmate seeking judicial resolution of a complaint, an inmate is only required to exhaust those administrative remedies which are actually available. 42 U.S.C. § 1997e(a) (“The PLRA, however, requires exhaustion of only ‘such administrative remedies as are available.’”). "The availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is “on the books.” Ross v. Blake, 136 S. Ct. 1850, 1859, 195 L. Ed. 2d 117 (2016)). Rather, a remedy is available only if it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
The Supreme Court noted three specific instances in which a remedy would not be “available” for purpose of PLRA exhaustion. Id. “First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross 136 S. Ct. at 1859, (citing Booth, 532 U.S. at 736, 738). Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Id. “[W]hen a remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable.” Id. Finally, the third scenario in which the Supreme Court would find a remedy unavailable is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, once the defendant has made a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff. Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, *11, 2017 WL 4004579 (S. D. W. Va. 2017).
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In the present civil action, Plaintiff Spiker alleges that he did not receive adequate medical or mental health care while incarcerated at TVRJ and this forms the basis for both Count I and Count II of the Amended Complaint. Therefore, Plaintiff’s suit is subject to the requirement that all administrative remedies be exhausted prior to filing suit. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003). Here, Plaintiff Spiker filed one grievance that was unrelated to his medical treatment and one grievance regarding suicide watch. See Spiker grievances Exhibit 2. The first grievance was responded to within 24 hours and it was not appealed. Id. The second grievance dated May 5, 2020 was a request to change the terms of his suicide watch. Plaintiff does not appear to make any specific factual allegations identified as a failure to accommodate related to the ADA, and the general allegations made are addressed infra.
First, inmates are not allowed to change the terms of suicide watch via the grievance procedure. This is a serious medical decision that is reserved for the judgment of medical professionals. Second, this grievance was submitted after the Second Amended Complaint was filed. However, the PLRA requires prisoners to exhaust administrative remedies prior to filing a complaint in federal court. See Christian v. Hale, 2019 U.S. Dist. LEXIS 137368, *11 (S. D. W. Va. 2019). Therefore, clearly if Mr. Spiker had complaints about his medical care or any separate ADA accommodation issue, these complaints were not made via the proper grievance procedures and his administrative remedies were not exhausted as required by the PLRA and WVPLRA.
The grievance process is available to all inmates and certainly to Plaintiff Spiker. Plaintiff Spiker was incarcerated at TVRJ on October 31, 2019. See Second Amended Complaint (Doc. 67)
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at ¶ 46. Plaintiff was moved to Davis Memorial Hospital on a Mental Hygiene Order on November 10, 2019. In that timeframe of approximately eleven days, Plaintiff has filed at least one grievance on the kiosk that was not related to this action. Exhibit 2. Plaintiff did not appeal this grievance but admits that he is aware of the appeal process. See relevant portions of Spiker deposition, Exhibit 3 at p. 56.
Furthermore, Plaintiff Spiker admits that at his intake orientation he was shown the kiosk and the inmate handbook. Id. at p. 58. He had recorded access to and viewed the Inmate Handbook at least once. See Spiker Kiosk visitation log at Exhibit 4. The inmate rulebook and the grievance process is readily available via electronic means on the kiosk. Exhibit 1; see, also, kiosk screenshot, Exhibit 5. Clearly, Mr. Spiker is aware of and is able to use the grievance process. Further, his first grievance was addressed. Exhibit 2. After complaining about the charges he deemed unfair in a grievance, Superintendent Lanham responded within 24 hours to explain the charges he received. Id. For these reasons, the grievance process cannot be considered "unavailable" for Plaintiff Spiker.
Finally, upon his return on May 5, 2020 he was able to file a second grievance that he appealed all the way to the commissioner. Id.; see, also, deposition of Danny Spiker Exhibit 3, at p. 91. This grievance was filed after the commencement of this case. However, a plaintiff may not exhaust administrative remedies during the pendency of a federal suit. King v. United States, 2011 U.S. Dist. LEXIS 151880, *12, (S.D.W. Va. 2012); see also Christian v. Hale, 2019 U.S. Dist. LEXIS 137368, *15 (S.D.W. VA. 2019)(Thus, he is also required to exhaust his administrative remedies in accordance with the West Virginia Prisoner Litigation Reform Act, W. Va. Code § 25-1A-1, et seq., prior to filing a federal lawsuit). The rationale behind pre-suit exhaustion is pragmatic, “if during the pendency of a suit, the administrative process was to produce results
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benefitting plaintiff, the federal court would have wasted its resources adjudicating claims that could have been resolved within the prison grievance system at the outset. King, 2011 U.S. Dist. LEXIS at *12 citing Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001).
Looking at this evidence as a whole, the Court must conclude that there are no genuine issues of material facts regarding whether the grievance process is available to Plaintiff Spiker and whether he properly exhausted the administrative remedies prior to bringing this issue before this Court. Plaintiff effectively utilized the grievance process during his short incarceration. He also acknowledged that he received an acceptable response to his second grievance. Armed with this knowledge, he still failed to request relief related to those complaints he asserts in the Amended Complaint. [Doc 67].
“[T]he PLRA[‘]s exhaustion requirement requires proper exhaustion” to include all steps that the agency has established and doing so consistent with the instructions provided. Woodford v. Ngo, 548 U.S. 81, 90 & 93 (2006). In this case, the requirements were set forth in the grievance procedure in the Inmate Handbook. Plaintiff failed to exhaust those administrative remedies available to him and, accordingly, Defendants are entitled to summary judgment on both Counts I and II as a result of his failure to exhaust his available administrative remedies under the PLRA.
II. THIS COURT SHOULD CONCLUDE AS A MATTER OF LAW THAT ALL OF THE DELIBERATE INDIFFERENCE CLAIMS FOR LACK OF MEDICAL AND MENTAL HEALTH TREATMENT UNDER COUNT I OF THE SECOND AMENDED COMPLAINT ARE WITHOUT MERIT.
Although an inmate is plainly entitled to receive adequate medical and mental health care while incarcerated, no inmate is entitled to receive nor may he or she insist that the State of West Virginia provide him with, the most sophisticated care that money can buy. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.1987). Rather the constitution only requires at Regional Jails, the facilities at issue under the Second Amended Complaint, that certain minimum standards of
10

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medical and mental health treatment are met, “not that they cater to the individual preference of each inmate.” Chase v. Quick, 596 F. Supp. 33, 35 (D.R.I. 1984). Deliberate indifference to a serious medical or mental health need of an inmate, including psychiatric care, can constitute unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976).
To adequately plead and prove an Eighth Amendment claim of deliberate indifference to the medical or mental health needs of an inmate, Plaintiff Spiker must satisfy a two-part test comprised of both objective and subjective components. First, Plaintiff must prove that the alleged deprivation of mental health treatment was “objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In order to satisfy the objective prong in a conditions of confinement claim, the prisoner must “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions,” or “demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions.” Importantly, “only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim.” Shakka v. Smith, 71 F.3d 162 (4th Circ. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 8-9 (1993).
Second, Plaintiff Spiker must demonstrate by competent, reasonable, and admissible evidence that the prison official had “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3. This subjective prong of the test requires Plaintiff to prove that Defendants had actual knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. Only when the official is “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [draws] the inference[]” does the requisite degree of culpability exist to satisfy the second element of the inquiry. Id. Neither negligence nor medical malpractice
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in diagnosis or treatment of an inmate’s medical/mental health condition may give rise to an Eighth Amendment deliberate indifference claim.
Importantly, the Fourth Circuit reviews Eighth Amendment claims based on the totality of the circumstances. See, Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir. 1976); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 865 (4th Cir. 1975). This Court followed this same deliberate indifference standard related to the COVID-19 conditions at West Virginia Regional Jails and Prisons in its Order in this case denying the preliminary injunction, Doc. 183 at pp. 13-14, as the Court found that the inmates could not meet that standard.
This Court’s decision on COVID-19 is well-reasoned and it equally applies in this instance. Just as Defendants had a plan to deal with the coronavirus, they have a contract to deal with medical and mental health needs in this case. As set forth in paragraph 4 of the affidavit of Commissioner Betsy Jividen (Exhibit 6):
DCR contracts with PrimeCare Medical, Inc. to provide health care to inmates at nine of the Regional Jails, all except for Northern Regional Jail. Health care is provided to inmates at Northern through Wexford Health Sources, Inc. Wexford also provides health care for all of the inmates at the Correctional Centers. Pursuant to the contracts, PrimeCare and Wexford are required to provide the proper staffing and adequate health care for inmates at their respective facilities. Id. The Court has further been provided with copies of the contracts with PrimeCare and Wexford for its review. A. Plaintiff Spiker Has Failed to Establish that Defendants were Deliberately
Indifferent to a Substantial Risk of Serious Harm to Plaintiff. Plaintiff Spiker cannot establish facts sufficient to proceed under § 1983 as to the objective prong of Farmer v. Brennan, supra. Under that prong, the Second Amended Complaint must allege that specific prison officials were deliberately indifferent to a risk of serious harm to the Plaintiff.
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Even assuming, arguendo, that Plaintiff Spiker had properly pled the requisite "serious deprivation" for an Eighth Amendment claim, Plaintiff cannot establish sufficient facts to establish the requisite “deliberate indifference” specifically as to Defendants.5 Commissioner Jividen has set forth in her affidavit that she is an attorney, not a licensed healthcare provider and that Defendants have no role in the delivery of healthcare in the Regional Jails. Exhibit 6 ¶¶ 8-9.
Deliberate indifference requires a showing that the official was subjectively aware of a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (U.S. 1994). In order to possess this level of culpability, “the official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id. To be liable, the prison officials must actually know of and disregard the risk. Id. at 837.
The Fourth Circuit has characterized the deliberate indifference standard as an “exacting one. Lightsey, 775 F.3d at 178.” Jones v. Chapman, 2017 U.S. Dist. LEXIS 87907 at *87-91 (D. Md. June 7, 2017). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness . . .” Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319 ( 4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986).” Id. “Deliberate indifference is a very high standard-a showing of mere negligence will not meet it .. . [T]he Constitution is designed to deal with deprivations of rights, not errors in judgments, even though such errors may have unfortunate consequences . . .” Grayson v. Peed, 195 F.3d 692, 695-96 ( 4th Cir. 1999).
Magistrate Tinsley, writing for this district, recently addressed a very similar situation
5 The only parties with the requisite knowledge regarding the delivery of medical and mental health care that should have been sued here, but were not, are PrimeCare and Wexford. This Court may note that the Defendants tried to join them as third-party defendants earlier, but the Plaintiffs opposed this joinder, and this Court agreed. Doc. 110.
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regarding medical care for an inmate in a proposed findings and recommendations for disposition in Greene v. Ballard, 2020 U.S. Dist. LEXIS 59180 (S.D. W.V. 2020), aff’d. 2020 U.S. Dist. LEXIS 53023 (S.D. W.V. 2020). In examining the second factor under the Farmer decision, Magistrate Tinsley at pp. 26-27, stated:
Defendants Ballard, Frame, Clifford, Mitchell, and Snyder appear to be correctional or administrative staff, and not licensed healthcare providers. The Second Amended Complaint does not specifically allege that any of these defendants interfered with the treatment being provided to Greene for his medical needs. To the extent that the Second Amended Complaint alleges that Greene was denied the ability to attend follow-up outside doctor's appointments, he has failed to specifically identify which defendant or defendants made those decisions.
* * * Thus, the Second Amended Complaint falls woefully short of sufficiently pleading the subjective component necessary to state a plausible claim of deliberate indifference on this basis. This Court should consider the decision in Greene and the deliberate indifference standard and reach a similar conclusion. In the instant matter, Plaintiff has made allegations against Defendants that they were deliberately indifferent to his medical needs based on the care he received. It is undisputed in this case that none of those specific care allegations relate to any conduct by Defendants. Instead, they appear to be ground in policies. There is no indication; however, that Defendants were either 1) aware of the specific allegations of Plaintiff (nor could there be because he failed to properly follow the administrative procedure in place until after the instant action was filed) and 2) that they were aware or intended for the policies to be an excessive risk to any inmate. Plaintiff has not identified a specific policy or procedure that the allege Defendants knew was medically inappropriate under the deliberate intent standard and therefore Plaintiff cannot show “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3 nor can he show that Defendants had an actual knowledge of
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and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. This Court should determine as a matter of law that Plaintiff has wholly failed to martial the necessary fact to establish deliberate indifference on the part of Defendants. As such, all claims under Count I of the Second Amended Complaint must be dismissed as a matter of law.
B. Defendants have required that PrimeCare and Wexford Maintain NCCHC Accreditation and this Court Should Rule as a Matter of Law that Meeting NCCHC’s Standards are Substantial Evidence of Compliance with the Constitutional Standards of Deliberate Indifference.
As set forth in paragraph 5 of Commissioner Jividen’s affidavit, Exhibit 6, as “a part of the contracts, each health care facility operated by PrimeCare and Wexford are required to be accredited by National Commission on Correctional Health Care ("NCCHC"), a nationally recognized organization with the mission of improving the quality of health care in prisons. Id. Every couple of years the NCCHC does a thorough audit of each facility and they review compliance with 39 essential standards and 20 important standards. The NCCHC requires 100% compliance with the essential standards for a facility to receive its accreditation. If you are not in full compliance with the essential standards, a contingent approval is provided and the facility is given a period of time to meet all of the essential standards.” In ¶¶ 6-7 of her affidavit, she further attests that all nine of the PrimeCare Regional Jail health care facilities have met the NCCHC accreditation standards and Wexford has received contingent approval for its health care facility at Northern Regional Jail. Id.
The District Court in Balla v. Idaho State Board of Corrections, 2020 U.S. Dist. LEXIS 95915 (D. Idaho 2020) recently examined the NCCHC standards in an Eighth Amendment deliberate indifference case related to medical and mental health for inmates that has been ongoing for almost 40 years. In that case, the district court discussed at length the NCCHC standards and considered them as evidence of compliance with the Eighth Amendment deliberate indifference
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standard. The district court made clear that the NCCHC standards, as “best practices” are not the “constitutional floor” but something to be considered along with the fact in the case. Id. at p. 29. Based upon the foregoing and the evidence in the case, the district court dismissed the case. Likewise, in this case, this Court should consider the NCCHC standards for accreditation and the evidence in the case, and conclude as a matter of law that all claims under Count I of the Second Amended Complaint must be dismissed against Defendants.
III. ALL CLAIMS UNDER COUNT II OF THE SECOND AMENDED COMPLAINT RELATED TO THE AMERICANS WITH DISABILITY ACT SHOULD BE DISMISSED AS A MATTER OF LAW.
Plaintiff’s claims in Count II of the Second Amended Complaint fall under Title II of the Americans with Disabilities Act (“ADA”) likewise fail. In order to present a claim under the ADA, Plaintiff must establish: “(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program or activity; and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against on the basis of their disability.” Gordon v. Tygart Valley Reg’l Jail, 2013 U.S. Dist. LEXIS 28444 (N.D. W. Va. 2013) (citing Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 498 (4th Cir. 2005)).
First, out of an abundance of caution, because there is some vagueness as to the basis of the Plaintiff’s ADA allegations based on the discovery to date, to the extent that Count II attempts to assert a claim against either Defendant under Title II of the ADA based on allegations that do not implicate constitutional rights, those claims are barred by sovereign immunity. See Sims v. Marano, 2020 U.S. Dist. LEXIS 20384 at 14-15 (W.D. Va. 2020) (Mem. Op.) (citing United States v. Georgia, 546 U.S. 151 (2006) and Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007)). To the extent that Count II attempts to assert a Title II claim under the ADA against Defendant
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Jividen in her official capacity, those claims are limited to prospective injunctive relief. Id. at 17. Second, with regard to Title II clams under the ADA that are based on alleged constitutional
violations, for the purposes of this Motion only, Defendants will assume Plaintiffs can meet the threshold to be considered disabled. However, even assuming, arguendo, that Plaintiff is disabled under this standard “courts routinely dismiss ADA suits by disabled inmates that allege inadequate medical treatment, but do not allege that the inmate was treated differently because of his/ her disability.” Gordon, supra, at 10. The Court found “it is not enough, in asserting a Title II discrimination claim under the ADA, for the Plaintiff to show that he received inadequate care in light of his disability. He must demonstrate that he was excluded from participation in a program or activity, or otherwise discriminated against, on the basis of his disability.” Id. at 12. In this case, Plaintiff Spiker cannot demonstrate such discrimination or that a request for accommodation that was denied and appealed through the required administrative process.
In the Second Amended Complaint, Plaintiff Spiker claims that all Plaintiffs did not receive necessary accommodations for disabilities to enable them to participate in jail life in the same manner as non-disabled inmates. Doc. 67 at ¶ 185. In addition, he has alleged that Plaintiffs were discriminated against by Defendants generally failing to provide reasonable accommodations. Id. at ¶ 186. The Amended Complaint further appears to allege that the policies related to medical treatment, including mental health services, “immediately upon entry to the State jails” Defendants have violated the ADA and discriminated against the Plaintiffs. Id. at ¶ ¶ 257 and 258.
To the extent that Plaintiff attempts to argue that his ADA claims are based on the same facts as the allegations related to the claim of deliberate indifference discussed supra, Plaintiff’s argument fails. Plaintiff Spiker’s Second Amended Complaint does not allege that he is receiving different medical care because of his disability. Accordingly, any claim related to medical care
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appears to be that the medical care received was inadequate. At set forth above, the Second Amended Complaint allegations related to medical care fail to meet the deliberate indifference standard and must be dismissed. Regardless, it is well settled that a claim of inadequate medical care is insufficient to establish a claim under the ADA. See Gordon, supra. See also Mondowney v. Balt. Cty. Det. Ctr., 2019 U.S. Dist. LEXIS 119566, p. 58-59 (D. Md. 2019) (discussing cases finding that a lack of medical treatment does not violate rights under the ADA); Spencer v. Easter, 109 F. Appx. 571, 773 (4th Cir. 2004) (failure to provide timely medication refills not an ADA violation); Bryant v. Madigan, 84 F. 3d. 246, 249 (7th Cir. 1996) (ADA not violated by a simple failure to attend to the medical needs of disabled prisoners).
Plaintiff Spiker has failed to articulate how he has been treated differently because of his alleged disabilities with regard to any jail program or service. Plaintiff has not identified any program or service that that he sought to participate in and was denied entry based on his disability. Instead, the allegations in the Second Amended Complaint are generally stated as a lack of accommodation and a general reference to policies. However, when asked in discovery to identify any evidence of an ADA violation, Plaintiff provided no specific information, he simply objected to the timing, calling the interrogatory an “improper block buster request, and calls for a legal conclusion that Plaintiff is not qualified to answer,” and, notwithstanding that objection and without waiving the same, he identified his medical conditions but no specific policy, program, accommodation or other specific alleged ADA violation. See relevant portions of discovery responses of plaintiff, Exhibit 7 at response to interrogatory number 21. To the extent that the allegations at issue are related to an accommodation for a disability, even general accommodations, they are subject to the exhaustion requirements of the PLRA. See e.g. O’Guinn v. Lovelock Corr. Ctr. 502 F.3d 1056, 1061-62 (9th Cir. 2007) (discussing plain language of PLRA requiring
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exhaustion of administrative remedies before bringing ADA and Rehabilitation Act claims); Corpening v. Hargrave, 2015 U.S. Dist. 80447, 10-11 (W. D. N.C. 2015) (same). As discussed supra, Plaintiff failed to exhaust the available administrative remedies for any requested accommodation prior to filing suit and so his claims must be dismissed as a matter of law.
IV. COUNT I OF THE SECOND AMENDED COMPLAINT MUST BE DISMISSED AGAINST WVDCR SINCE IT IS NOT A PERSON.
WVDCR is entitled to dismissal under Count I of the Second Amended Complaint as a matter of law because it is not a “person” subject to suit in this court under 42 U.S.C. § 1983. That section provides a remedy to parties who are deprived of protected civil rights by “persons” acting under color of any state “law, statute, ordinance, regulation, custom, or usage.” The Supreme Court in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) held that neither a state nor its agencies are “persons” under § 1983. The Fourth Circuit has confirmed that it is “well settled” that a state or a state agency are not “persons” as required under 42 U.S.C. § 1983. See e.g Kelly v. State, 2007 U.S. Dist. LEXIS 95954 (D. Md. 2007) aff’d 267 F. App'x 209, 210, 2008 U.S. App. 1226 (4th Cir. 2008) (recognizing that it has been “well settled” that the state cannot be sued under 42 U.S.C. § 1983 and noting that “[a] cause of action under § 1983 requires the deprivation of a civil right by a “person” acting under color of state law.)
Court I against WVDCR clearly falls within the category of attempted § 1983 actions that cannot be brought under § 1983 because WVDCR is not a person. In similar cases, the State and its agencies have been found not to be “persons” under § 1983 and have been dismissed from suit. See Cochran v. W. Va. Reg'l Jail & Corr. Facility Auth., 2014 U.S. Dist. LEXIS 89893, at *8 (S.D. W.Va. 2014)(holding W.Va. Regional Jail and Correctional Facility Authority, the predecessor to WVDCR, is a state agency and that no § 1983 action could be brought against it) and Black v. West Virginia, 2019 U.S. Dist. LEXIS 172020, at *10-12 (S.D. W.Va. 2019)(holding the State was
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entitled to dismissal because it is not a “person” subject to liability or suit under § 1983). This Court as a matter of law should dismiss WVDCR from Count I of the Second Amended Complaint.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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 Case 3:18-cv-01526 Document 273 Filed 07/17/20 Page 1 of 4 PageID #: 5659

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO DONNA WELLS-WRIGHT

NOW COMES the Defendant Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, in her official capacity only, and the West Virginia Division of

Corrections and Rehabilitation (“WVDCR”), by counsel, Webster J. Arceneaux, III, James C.

Stebbins, and Valerie H. Raupp of Lewis Glasser PLLC and Briana J. Marino, Assistant Attorney

General for the State of West Virginia, pursuant to Rule 56 of the Federal Rules of Civil Procedure,

and they moves this Honorable Court for summary judgment with regard to the claims of Donna

Wells-Wright as set forth herein as follows:

1. Plaintiff Donna Wells-Wright is a named plaintiff in the above styled civil action. At the time the Second Amended Complaint was filed on December 19, 2019, Ms. Wells-Wright had been released from Northern Regional Jail. Second Amended Complaint, Doc. 67 ¶ 18. On or about June 26, 2020, Ms. Wells-Wright’s bail was revoked and she returned to North Central Regional Jail pending sentencing on a charge of possession of a controlled substance.

2. Plaintiff Wells-Wright clearly states in her Second Amended Complaint that this “is an action on behalf of inmates admitted to jail facilities throughout West Virginia . . . Plaintiffs

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seek to ensure that jails in West Virginia promptly provide appropriate and necessary medical and mental health treatment to inmates upon admission, . . .” Id. at ¶ 1.
4. This Court should dismiss the claims of Plaintiff Wells-Wright for failure to exhaust her administrative grievance remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
5. This Court should likewise dismiss the deliberate indifference claims in Count I under the Eighth and Fourteenth Amendments, United States Constitution, under 42 U.S.C. § 1983, finding that Plaintiff Wells-Wright does not have sufficient evidence to support her Count I claims.
6. In addition, it is undisputed that all ten Regional Jails in West Virginia are certified by the National Commission on Correctional Health Care (“NCCHC”). This Court should conclude as a matter of law that NCCHC certification indicates that the ten Regional Jails in West Virginia meet the deliberate indifference standards under the Eighth and Fourteenth Amendments, United States Constitution, United States Constitution, and all claims by Plaintiff Wells-Wright under Count I should be dismissed.
7. This Court should likewise dismiss the Count II claims under the Americans with Disability Act (“ADA”), 42 U.S.C § 12132, finding that neither Plaintiff Wells-Wright nor any other Plaintiffs have sufficient evidence to support their ADA claims under Count II.
8. Finally, this Court should at a minimum conclude that the claims in Count I under 42 U.S.C. § 1983 should be dismissed against WVDCR since it is not a person under that provision.
WHEREFORE, based upon the foregoing, as more fully discussed in the Memorandum of Law in Support, Defendants respectfully request that this Court enter an order dismissing Plaintiff Donna Wells-Wright ‘s claims for declaratory and injunctive relief under Count I and II of the Second Amended Complaint in this case, that the claims under Count I and II of the Complaint
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should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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Case 3:18-cv-01526 Document 273 Filed 07/17/20 Page 4 of 4 PageID #: 5662

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 17th day of July 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AS TO DONNA WELLS-WRIGHT” and the
“MEMORANDUM OF LAW IN SUPPORT” via the CM/ECF system that will send notification
to the following counsel of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 274 Filed 07/17/20 Page 1 of 20 PageID #: 6334

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526 (Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO DONNA WELLS-WRIGHT

Defendants, by counsel, pursuant to Rule 56 of the Federal Rules of Civil Procedure, have

moved this Honorable Court for summary judgment with regard to the claims of Donna Wells-

Wright. For the reasons set forth below, this Plaintiff’s claims should be dismissed with prejudice.

STATEMENT OF FACTS

Plaintiff Donna Wells-Wright is currently incarcerated at North Central Regional Jail

(“NCRJ”) located in Doddridge County, West Virginia on pre-trial basis after her bond was

revoked on or about June 25, 2020. Prior to this incarceration, Ms. Wells-Wright was incarcerated

in Northern Regional Jail (“NRJ”) on or about August 25, 2019. See Second Amended Complaint

(Doc. 67) at ¶ 69. She was charged with possession of a controlled substance without a proper

prescription, placed on probation, and she then violated her probation and was incarcerated to serve

out the remainder of her sentence. See Deposition of Donna Wells-Wright attached as Exhibit 1

at p. 25. Plaintiff Wells-Wright was transferred almost immediately from NRJ to NCRJ for a court

appearance and then transferred back to NRJ. Id. at ¶ 72-73; 85. She was then transferred back to

NCRJ for a second court appearance, and then returned to NRJ. Ms. Wells Wright was released

from NRJ on November 22, 2019 as her sentence was completed. Id. at p. 27.

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Subsequently, Ms. Wells-Wright was incarcerated on January 7, 2020 at North Central Regional Jail after her pre-trial bond on a new charge of delivery of a controlled substance was revoked. Id. at pp. 25, 28. She was incarcerated for approximately 85 days and released around the end of March 2020. Id. at 29. On or about June 26, 2020, Ms. Wells-Wright’s bail was revoked and she returned to North Central Regional Jail pending sentencing on a charge of possession of a controlled substance. Her sentencing date is currently set for July 29, 2020.
Ms. Wells-Wright claims that she suffers from Chronic Obstructive Pulmonary Disease (COPD), emphysema, lumbar stenosis, cervical stenosis, spinal stenosis, deteriorating bone disease, degenerative disc disease, arthritis, high blood pressure, hiatal hernia and gastritis. See Second Amended Complaint (Doc. 67) at ¶ 69. Plaintiff’s primary complaints regarding her medical treatment while at both NRJ and NCRJ are as follows: 1) she did not receive her medications quickly enough after intake for her initial incarceration or timely after any transfer (Id. at ¶ 71 ); 2) when she began to receive medicine, she claims it was minimal and not in dosages sufficient to treat her breathing conditions (Id. at ¶ 76); 3) she never received meaningful treatment for her chronic pain associated with her alleged skeletal conditions (Id. at ¶88); and 4) she was caused pain by only receiving a blanket and being forced to sleep on the floor during detox and because she was placed on the second tier when put into general population (Id. at ¶¶75, 79-80). During her deposition she also claimed that she believed it took too long for an inmate to be seen for a sick call. Exhibit 1 at p. 74.
Generally, with regard to Ms. Wells-Wright’s allegations that her breathing medications in particular were withheld or not provided, she admitted in her deposition that she was advised that when these medications were unavailable they were on order and that they were backordered. Id. at pp. 83, 96, 103, 114-15. During her deposition, Ms. Wells-Wright admitted that some of her
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medications were not readily available at the jail and were harder to get than others and that this was a difference in how she was treated. Id. at 13-14. She also admitted that when the medications were brought to the facility by her family, they were almost immediately provided to her. Id. at p. 65.
Ms. Wells Wright did file grievances related to her medications on September 1, 7 and 10, 2019. See Wells-Wright grievances. Exhibit 2. She did not appeal these grievances and her family provided some medications on or about September 10, 2019 and she began receiving them September 11, 2019 which resolved her grievances. See Exhibit 1 at p. 94 and Exhibit 2 at Bates No. 113943. She also filed a grievance that when she was transferred back from NCRJ to NRJ on or about September 17, 2019 that as of September 21, 2019 she had not received her medications. See Exhibit 2 at Bates No. DCR 116572. Her medical records demonstrate that she started receiving these as of September 22, 2019. Id. at Bates No. DCR 120153.1 She was also scheduled for a sick call. Id. at Bates No. DCR 120164.
Ms. Wells-Wright alleges in the Complaint that she was placed in general population on the second tier and other inmates brought her food and helped her in her Complaint. Doc. 67 at ¶¶ 79-80. However, during her deposition, Ms. Wells-Wright stated she was actually assigned a bed in a first-floor cell but that other inmates were already occupying that cell and so she went where she was invited to stay by other inmates. See Exhibit 1 at pp. 71-72. She states she told two correctional officers about this but that she reported to them she was dealing with the situation. Id. at 72. However, she did not file a grievance about this situation. Ms. Wells-Wright does not recall specifically requesting an accommodation. Id. at p. 78. She stated that the inmates have
1 Because Plaintiff’s medical records are deemed confidential, they are not being produced contemporaneously herewith. They will be produced at the request of the Court under seal or using some other method to preserve their confidentiality.
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to agree regarding getting the bottom bunk and for the most part she had the bottom bunk. Id. at 79. The reply regarding the mat was that the policy was to provide one mat and she was on the list to be seen by medical as soon as possible. See Exhibit 2 at Bates No. DCR 116572. No appeal was filed.
Ms. Wells-Wright was aware of the inmate handbook and reviewed it. See Exhibit 1 at p. 54. She testified the inmate handbook had directions as to how to the grievance process worked and testified that she filed grievances on the kiosk and testified that she filed an appeal in writing. Id. at pp. 54-55. She was aware of the handbook and “did exactly as the handbook told me to do.” Id. at p. 55. Although she filed grievances about how to file an appeal, Ms. Wells’ Wright testified that at the time of her first incarceration in August 2019, she was able to file a grievance and understood how to file an appeal. Id. at 56.
STANDARD OF REVIEW Under Rule 56(c), Federal Rules of Civil Procedure, “Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is ‘no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”’ Kitchen v. Summers Continuous Care Center, LLC, 552 F.Supp.2d 589, 592 (S.D. W.Va. 2008) (Quoting Fed.R.Civ.P. 56(c)). “The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 322-323 (1986). “The nonmoving party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]’” Piedmont Behav. Health Ctr., LLC v. Stewart, 413 F.Supp.2d 746, 751 (S.D. W.Va. 2006) (Goodwin, J.) District Courts in West Virginia have applied this standard in granting motions for summary judgment in appropriate inmate cases involving Eighth Amendment issues related to
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health care and other matters. See Langley v Arresting Officers,2020 U.S. Dist. LEXIS 56160 (S.D. W.Va. 2020); Smith v PrimeCare Medical, et al., 2020 U.S. Dist. LEXIS 101065 (S.D. W.Va. 2020); and, Salmons v. Western Reg. Jail, 2020 U.S. Dist. LEXIS 97540 (S.D. W.Va. 2020).
ARGUMENT I. PLAINTIFF DONNA WELLS-WRIGHT HAS NOT EXHAUSTED HER
ADMINISTRATIVE REMEDIES AS TO ANY CONDITION OF CONFINEMENT REFERENCED IN THE SECOND AMENDED COMPLAINT AND THEREFORE, IT SHOULD BE DISMISSED. Plaintiff Donna Wells-Wright failed to exhaust her administrative remedies under the Prison Litigation Reform Act of 1995, ("PLRA"), 42 U.S.C. § 1997 et seq. prior to seeking judicial redress. Defendants argue that all of Plaintiff’s claims related to the alleged failure by Defendants to provide medical and mental health treatment to inmates upon admission to a Regional Jail should be dismissed because prisoners are required to exhaust their administrative remedies in making complaints regarding prison treatment prior to bringing an action in court and that requirement was not met for any of Plaintiff Wells-Wright’s claims. Likewise, any claim for a failure to accommodate a disability or claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12133 (“ADA”). Specifically, Defendants argue that Plaintiff Wells-Wright failed to do the following: (1) provide evidence of exhaustion; (2) timely appeal the decisions; and (3) grieve or exhaust issues related to medical treatment prior to the filing of the Second Amended Complaint. The PLRA, 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The term “prison conditions” as utilized by the PLRA is defined as “...conditions of confinement or the effects of actions by government officials on the lives of persons confined
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in prison, but does not include habeas corpus proceedings.” 18 U.S.C. § 3626(g)(2). In Porter v. Nussle, 534 U.S. 516, 531 (2002), the United States Supreme Court held that “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” The exhaustion requirement also applies regardless of the relief sought by the inmate through the administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001).
“Not only must a prisoner exhaust his administrative remedies, but he must also do so properly.” Wells v. Parkersburg Work Release Ctr., 2016 U.S. Dist. LEXIS 21026, 2016 WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 U.S. Dist. LEXIS 20459, 2016 WL 707457 (S.D. W. Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)).
If a plaintiff fails to exhaust his or her administrative remedies under the PLRA, then the defendant is entitled to judgment as a matter of law. Legg v. Adkins, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017). Whether an administrative remedy has been exhausted for purposes of the PLRA “is a question of law to be determined by the judge.” Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, 2017 WL 4004579, at *3 (S.D. W. Va. 2017) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)). Thus, disputed questions of fact regarding exhaustion of administrative remedies are resolved by the court. See id. The benefits of requiring exhaustion “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.”
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Jones v. Bock, 549 U.S. 199 , 219 (2007) (citing Woodford v. Ngo, 548 U.S. 81 , 88-91 (2006)).2 The West Virginia Division of Corrections and Rehabilitation (WVDCR) provides a
grievance procedure in order to ensure direct access to an administrative remedy for inmates regarding all aspects of their confinement, including claims for medical care and conditions of confinement. The Inmate Handbook sets forth the formal process through which an inmate may seek “redress over any matter concerning prison life.” Exhibit 3, excerpts of Inmate Handbook for Regional Jail Inmates. Under Grievance Procedures outlined in the Handbook, an inmate may file a grievance to an administrator and, if unsatisfied by the response or if the response is not timely received in the manner prescribed by policy, the inmate may appeal to the Chief of Operations. Id. Again, if the inmate is not satisfied with the response received or does not receive a timely response, a third level of administrative oversight is included in the policy: an appeal to the Commissioner of WVDCR. Id.
While the PLRA requires administrative exhaustion prior to an inmate seeking judicial resolution of a complaint, an inmate is only required to exhaust those administrative remedies which are actually available. 42 U.S.C. § 1997e(a)) (“The PLRA, however, requires exhaustion of only ‘such administrative remedies as are available.’”). "The availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is “on the books.” Ross v. Blake, 136 S. Ct. 1850, 1859, 195 L. Ed. 2d 117 (2016)). Rather, a remedy is available only if it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at
2 Like the PLRA, the WVPLRA "require[s] inmates to exhaust their administrative remedies before they bring a lawsuit." Legg v. Adkins, No. 2:16-cv-01371, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017) (citing 42 U.S.C. § 1997e(a); W. Va. Code § 25-1A-2a(i)). Under the WVPLRA, "[a]n inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted." W. Va. Code § 25-1A-2(c). The WVPLRA defines an ordinary administrative remedy as "a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life. . . .which includes health care" Id. § 25-1A-2(a). This Court should conclude that Plaintiff Wells-Wright also failed to exhaust her grievances under the WVPLRA as well.
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1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). The Supreme Court noted three specific instances in which a remedy would not be
“available” for purpose of PLRA exhaustion. Id. “First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross 136 S. Ct. at 1859, (citing Booth, 532 U.S. at 736, 738). Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Id. “[W]hen a remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable.” Id. Finally, the third scenario in which the Supreme Court would find a remedy unavailable is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, once the defendant has made a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff. Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, *11, 2017 WL 4004579 (S. D. W. Va. 2017).
In the present civil action, Plaintiff Wells-Wright alleges that she did not receive adequate medical or mental health care while incarcerated at Northern and North Central Regional Jails and this forms the basis for both Count I and Count II of the Second Amended Complaint. Therefore, Plaintiff’s suit is subject to the requirement that all administrative remedies be exhausted prior to filing suit. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003). Specifically, she alleges that upon her admission to Northern Regional Jail she
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informed Defendant of her pre-existing conditions and medications but did not receive any of her medications. See Doc. 67 ¶¶ 69-71. Ms. Wells-Wright also alleges that upon transfer to North Central Regional Jail she again provided information about her pre-existing conditions and medications but did not receive these medications for several days. Id. ¶ 73. After several days she states that she received minimal dosages of her medications. Id. ¶ 76. However, she claims that she never received meaningful treatment for her chronic pain. Id. ¶ 88.
Plaintiff’s suit is subject to the requirement that all administrative remedies be exhausted prior to filing suit. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003). Here, the Plaintiff filed approximately 13 grievances while at Northern Regional Jail and 8 grievances while at North Central Regional Jail. Exhibit 2. Two of these were filed after this action was commenced. Id. Some of the grievances were related to her medical treatment. Id. However, these grievances were responded to or properly forwarded to someone in medical that could assess her claims. None of these grievances were appealed. Therefore, her complaints about her medical care made via the grievance procedures were properly resolved under the system and not exhausted as required by the PLRA and WVPLRA.
Here, the grievance process is available to all inmates and certainly to Plaintiff WellsWright. Since her incarceration, Plaintiff has filed at least twenty-one grievances with approximately nine of those grievances relating to the claims at hand. Exhibit 2. Furthermore, Plaintiff Wells-Wright admits that she knew about the inmate handbook and the grievance instructions within the handbook. Exhibit 1 at p. 54. Plaintiff further admits that she was able to file grievances and she understood how to file an appeal. Id. at p. 58. She had recorded access to
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and viewed the Inmate Handbook at least once. Exhibit 4, inmate kiosk view log. In fact, she admits that her issues with her medical care were resolved by January 2020. Exhibit 1 at p. 60. The inmate rulebook and the grievance process are readily available via electronic means on the Kiosk. Exhibit 5, inmate kiosk screenshot.
Therefore, the grievance process cannot be considered "unavailable" because she successfully filed at least twenty-one grievances. Further, her grievances were addressed on each occasion or resubmitted to medical. Relief was granted when available. Id. Furthermore, any of her complaints that were not addressed via grievance and were reassigned to medical were addressed by the medical department. Id.
The rationale behind pre-suit exhaustion is pragmatic, “if during the pendency of a suit, the administrative process was to produce results benefitting plaintiff, the federal court would have wasted its resources adjudicating claims that could have been resolved within the prison grievance system at the outset. King, 2011 U.S. Dist. LEXIS at *12 citing Neal v. Goord, 267 F.3d 116, 12122 (2d Cir. 2001).
Looking at this evidence as a whole, the Court must conclude that there are no genuine issues of material facts regarding whether the grievance process is available to Plaintiff WellsWright and whether she properly exhausted the administrative remedies prior to bringing this issue before this Court. She did not. Plaintiff effectively utilized the grievance process during her period of incarceration but she did not exhaust her remedies.
“[T]he PLRA[‘]s exhaustion requirement requires proper exhaustion” to include all steps that the agency has established and doing so consistent with the instructions provided. Woodford v. Ngo, 548 U.S. 81, 90 & 93 (2006). In this case, the requirements were set forth in the grievance procedure in the Inmate Handbook. Plaintiff failed to exhaust those administrative remedies
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available to her and, accordingly, Defendants are entitled to summary judgment on both Counts I and II as a result of her failure to exhaust her available administrative remedies under the PLRA.
II. THIS COURT SHOULD CONCLUDE AS A MATTER OF LAW THAT ALL OF THE DELIBERATE INDIFFERENCE CLAIMS FOR LACK OF MEDICAL AND MENTAL HEALTH TREATMENT UNDER COUNT I OF THE SECOND AMENDED COMPLAINT ARE WITHOUT MERIT.
Although an inmate is plainly entitled to receive adequate medical and mental health care while incarcerated, no inmate is entitled to receive nor may he or she insist that the State of West Virginia provide him with, the most sophisticated care that money can buy. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.1987). Rather the constitution only requires at Regional Jails, the facilities at issue under the Second Amended Complaint, that certain minimum standards of medical and mental health treatment are met, “not that they cater to the individual preference of each inmate.” Chase v. Quick, 596 F. Supp. 33, 35 (D.R.I. 1984). Deliberate indifference to a serious medical or mental health need of an inmate, including psychiatric care, can constitute unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976).
To adequately plead and prove an Eighth Amendment claim of deliberate indifference to the medical or mental health needs of an inmate, Plaintiff Wells-Wright must satisfy a two-part test comprised of both objective and subjective components. First, Plaintiff must prove that the alleged deprivation of mental health treatment was “objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In order to satisfy the objective prong in a conditions of confinement claim, the prisoner must “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions,” or “demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions.” Importantly, “only extreme deprivations are
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adequate to satisfy the objective component of an Eighth Amendment claim.” Shakka v. Smith, 71 F.3d 162 (4th Circ. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 8-9 (1993).
Second, Plaintiff Wells-Wright must demonstrate by competent, reasonable, and admissible evidence that the prison official had “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3. This subjective prong of the test requires Plaintiff to prove that Defendants had actual knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. Only when the official is “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [draws] the inference[]” does the requisite degree of culpability exist to satisfy the second element of the inquiry. Id. Neither negligence nor medical malpractice in diagnosis or treatment of an inmate’s medical/mental health condition may give rise to an Eighth Amendment deliberate indifference claim.
Importantly, the Fourth Circuit reviews Eighth Amendment claims based on the totality of the circumstances. See, Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir. 1976); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 865 (4th Cir. 1975). This Court followed this same deliberate indifference standard related to the COVID-19 conditions at West Virginia Regional Jails and Prisons in its Order in this case denying the preliminary injunction, Doc. 183 at pp. 13-14, as the Court found that the inmates could not meet that standard.
This Court’s decision on COVID-19 is well-reasoned and it equally applies in this instance. Just as Defendants had a plan to deal with the coronavirus, they have a contract to deal with medical and mental health needs in this case. As set forth in the affidavit of Commissioner Jividen:
DCR contracts with PrimeCare Medical, Inc. to provide health care to inmates at nine of the Regional Jails, all except for Northern Regional Jail. Health care is provided to inmates at Northern through Wexford Health Sources, Inc. Wexford also provides health care for all of the inmates at the Correctional Centers. Pursuant
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to the contracts, PrimeCare and Wexford are required to provide the proper staffing and adequate health care for inmates at their respective facilities. Exhibit 6 at ¶ 4. The Court has further been provided with copies of the contracts with PrimeCare and Wexford for its review. A. Plaintiff Wells-Wright Has Failed to Establish that Defendants were
Deliberately Indifferent to a Substantial Risk of Serious Harm to Plaintiff. Plaintiff Wells-Wright cannot establish facts sufficient to proceed under § 1983 as to the objective prong of Farmer v. Brennan, supra. Under that prong, Plaintiff must allege that specific prison officials were deliberately indifferent to a risk of serious harm to the Plaintiff. Even assuming, arguendo, that Plaintiff Wells-Wright had properly pled the requisite "serious deprivation" for an Eighth Amendment claim, Plaintiff cannot establish sufficient facts to establish the requisite “deliberate indifference” specifically as to Defendants.3 Commissioner Jividen has set forth in her affidavit that she is an attorney, not a licensed healthcare provider and that Defendants have no role in the delivery of healthcare in the Regional Jails. Exhibit 6 ¶¶ 8-9. Deliberate indifference requires a showing that the official was subjectively aware of a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (U.S. 1994). In order to possess this level of culpability, “the official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id. To be liable, the prison officials must actually know of and disregard the risk. Id. at 837. The Fourth Circuit has characterized the deliberate indifference standard as an “exacting one. Lightsey, 775 F.3d at 178.” Jones v. Chapman, 2017 U.S. Dist. LEXIS 87907 at *87-91 (D.
3 The only parties with the requisite knowledge regarding the delivery of medical and mental health care that should have been sued here, but were not, are PrimeCare and Wexford. This Court may note that the Defendants tried to join them as third-party defendants earlier, but the Plaintiffs opposed this joinder, and this Court agreed. Doc. 110.
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Md. June 7, 2017). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness . . .” Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319 ( 4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986).” Id. “Deliberate indifference is a very high standard-a showing of mere negligence will not meet it .. . [T]he Constitution is designed to deal with deprivations of rights, not errors in judgments, even though such errors may have unfortunate consequences . . .” Grayson v. Peed, 195 F.3d 692, 695-96 ( 4th Cir. 1999).
Magistrate Tinsley, writing for this district, recently addressed a very similar situation regarding medical care for an inmate in a proposed findings and recommendations for disposition in Greene v. Ballard, 2020 U.S. Dist. LEXIS 59180 (S.D. W.V. 2020), aff’d. 2020 U.S. Dist. LEXIS 53023 (S.D. W.V. 2020). In examining the second factor under the Farmer decision, Magistrate Tinsley at pp. 26-27, stated:
Defendants Ballard, Frame, Clifford, Mitchell, and Snyder appear to be correctional or administrative staff, and not licensed healthcare providers. The Second Amended Complaint does not specifically allege that any of these defendants interfered with the treatment being provided to Greene for his medical needs. To the extent that the Second Amended Complaint alleges that Greene was denied the ability to attend follow-up outside doctor's appointments, he has failed to specifically identify which defendant or defendants made those decisions….Thus, the Second Amended Complaint falls woefully short of sufficiently pleading the subjective component necessary to state a plausible claim of deliberate indifference on this basis. This Court should consider the decision in Greene and the deliberate indifference standard and reach a similar conclusion. In the instant matter, Plaintiff has made allegations against Defendants that they were deliberately indifferent to her medical needs based on the care she received. It is undisputed in this case that none of those specific care allegations relate to any conduct by Defendants. Instead, they appear to be ground in policies. There is no indication; however, that Defendants were either
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1) aware of the specific allegations of Plaintiff (nor could there be because she failed to properly
follow the administrative procedure in place) and 2) that they were aware or intended for the
policies to be an excessive risk to any inmate. Plaintiff has not identified a specific policy or
procedure that the allege Defendants knew was medically inappropriate under the deliberate intent
standard and therefore Plaintiff cannot show “a sufficiently culpable state of mind.” Wilson, 501
U.S. at 302-3 nor can she show that Defendants had an actual knowledge of and disregard for the
“excessive risk to inmate health.” Farmer, 511 U.S. at 837. This Court should determine as a
matter of law that Plaintiff has wholly failed to martial the necessary fact to establish deliberate
indifference on the part of Defendants. As such, all claims under Count I of the Second Amended
Complaint must be dismissed as a matter of law.
B. Defendants have required that PrimeCare and Wexford Maintain NCCHC Accreditation and this Court Should Rule as a Matter of Law that Meeting NCCHC’s Standards are Substantial Evidence of Compliance with the Constitutional Standards of Deliberate Indifference.
As set forth in Commissioner Jividen’s affidavit: [as] a part of the contracts, each health care facility operated by PrimeCare and Wexford are required to be accredited by National Commission on Correctional Health Care ("NCCHC"), a nationally recognized organization with the mission of improving the quality of health care in prisons. Every couple of years the NCCHC does a thorough audit of each facility and they review compliance with 39 essential standards and 20 important standards. The NCCHC requires 100% compliance with the essential standards for a facility to receive its accreditation. If you are not in full compliance with the essential standards, a contingent approval is provided and the facility is given a period of time to meet all of the essential standards.
Exhibit 6 at ¶ 5. In ¶¶ 6-7 of her affidavit, she further attests that all nine of the PrimeCare
Regional Jail health care facilities have met the NCCHC accreditation standards and Wexford has
received contingent approval for its health care facility at Northern Regional Jail.
The District Court in Balla v. Idaho State Board of Corrections, 2020 U.S. Dist. LEXIS
95915 (D. Idaho 2020) recently examined the NCCHC standards in an Eighth Amendment
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deliberate indifference case related to medical and mental health for inmates that has been ongoing for almost 40 years. In that case, the district court discussed at length the NCCHC standards and considered them as evidence of compliance with the Eighth Amendment deliberate indifference standard. The district court made clear that the NCCHC standards, as “best practices” are not the “constitutional floor” but something to be considered along with the fact in the case. Id. at p. 29. Based upon the foregoing and the evidence in the case, the district court dismissed the case. Likewise, in this case, this Court should consider the NCCHC standards for accreditation and the evidence in the case, and conclude as a matter of law that all claims under Count I of the Second Amended Complaint must be dismissed against Defendants.
III. ALL CLAIMS UNDER COUNT II OF THE SECOND AMENDED COMPLAINT RELATED TO THE AMERICANS WITH DISABILITY ACT SHOULD BE DISMISSED AS A MATTER OF LAW.
Plaintiff’s claims in Count II of the Second Amended Complaint fall under Title II of the Americans with Disabilities Act (“ADA”) likewise fail. In order to present a claim under the ADA, Plaintiff must establish: “(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program or activity; and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against on the basis of their disability.” Gordon v. Tygart Valley Reg’l Jail, 2013 U.S. Dist. LEXIS 28444 (N.D. W. Va. 2013)(citing Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 498 (4th Cir. 2005)).
First, out of an abundance of caution, because there is some vagueness as to the basis of the Plaintiff’s ADA allegations based on the discovery to date, to the extent that Count II attempts to assert a claim against either Defendant under Title II of the ADA based on allegations that do not implicate constitutional rights, those claims are barred by sovereign immunity. See Sims v.
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Marano, 2020 U.S. Dist. LEXIS 20384 at 14-15 (W.D. Va. 2020)(Mem. Op.)(citing United States v. Georgia, 546 U.S. 151 (2006) and Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007)). To the extent that Count II attempts to assert a Title II claim under the ADA against Defendant Jividen in her official capacity, those claims are limited to prospective injunctive relief. Id. at 17.
Second, with regard to Title II clams under the ADA that are based on alleged constitutional violations, for the purposes of this Motion only, Defendants will assume Plaintiffs can meet the threshold to be considered disabled. However, even assuming, arguendo, that Plaintiff is disabled under this standard “courts routinely dismiss ADA suits by disabled inmates that allege inadequate medical treatment, but do not allege that the inmate was treated differently because of his/ her disability.” Gordon, supra, at 10. The Court found “it is not enough, in asserting a Title II discrimination claim under the ADA, for the Plaintiff to show that he received inadequate care in light of her disability. He must demonstrate that he was excluded from participation in a program or activity, or otherwise discriminated against, on the basis of his disability.” Id. at 12. In this case, Plaintiff Wells-Wright cannot demonstrate such discrimination or that a request for accommodation that was denied and appealed through the required administrative process.
In the Second Amended Complaint, Plaintiff Wells-Wright claims that all Plaintiffs did not receive necessary accommodations for disabilities to enable them to participate in jail life in the same manner as non-disabled inmates. Doc. 67 at ¶ 185. In addition, she has alleged that Plaintiffs were discriminated against by Defendants failing to provide reasonable accommodations. Id. at ¶ 186. The Amended Complaint further appears to allege that the policies related to medical treatment, including mental health services, “immediately upon entry to the State jails” Defendants have violated the ADA and discriminated against the Plaintiffs. Id. at ¶ ¶ 257 and 258.
To the extent that Plaintiff attempts to argue that her ADA claims are based on the same
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facts as the allegations related to the claim of deliberate indifference discussed supra, Plaintiff’s argument fails. Plaintiff Wells-Wright’s Second Amended Complaint does not allege that she is receiving different medical care because of her disability. Accordingly, any claim related to medical care appears to be that the medical care received was inadequate. At set forth above, the Second Amended Complaint allegations related to medical care fail to meet the deliberate indifference standard and must be dismissed. Regardless, it is well settled that a claim of inadequate medical care is insufficient to establish a claim under the ADA. See Gordon, supra. See also Mondowney v. Balt. Cty. Det. Ctr., 2019 U.S. Dist. LEXIS 119566, p. 58-59 (D. Md. 2019)(discussing cases finding that a lack of medical treatment does not violate rights under the ADA); Spencer v. Easter, 109 F. Appx. 571, 773 (4th Cir. 2004)(failure to provide timely medication refills not an ADA violation); Bryant v. Madigan, 84 F. 3d. 246, 249 (7th Cir. 1996)(ADA not violated by a simple failure to attend to the medical needs of disabled prisoners).
Plaintiff Wells-Wright has failed to articulate how she has been treated differently because of her alleged disabilities with regard to any jail program or service. She testified she did not feel singled out. Plaintiff has not identified any program or service that that she sought to participate in and was denied entry based on her disability. Instead, the allegations in the Second Amended Complaint are generally stated as a lack of accommodation and a general reference to policies and she generally testified that she felt chronic care was on the back burner but that is a medical treatment concern not subject to the ADA as set forth above and it was not administratively exhausted. Further, when asked in discovery to identify any evidence of an ADA violation, Plaintiff provided no specific information, she simply objected to the timing, calling the interrogatory an “improper block buster request, and calls for a legal conclusion that Plaintiff is not qualified to answer,” and, notwithstanding that objection and without waiving the same, she
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identified her medical conditions but no specific policy, program, accommodation or other specific alleged ADA violation. See Exhibit 7, Plaintiff’s Response to Defendants’ Interrogatory No. 21. To the extent that the allegations at issue are related to an accommodation for a disability, even general accommodations, they are subject to the exhaustion requirements of the PLRA. See e.g. O’Guinn v. Lovelock Corr. Ctr. 502 F.3d 1056, 1061-62 (9th Cir. 2007)(discussing plain language of PLRA requiring exhaustion of administrative remedies before bringing ADA and Rehabilitation Act claims); Corpening v. Hargrave, 2015 U.S. Dist. 80447, 10-11 (W. D. N.C. 2015) (same). Finally, as discussed supra, even assuming arguendo that Plaintiff could establish that she was entitled to her specific requests as an accommodation considering other penological concerns such as administration and security, which is denied, Plaintiff failed to exhaust the available administrative remedies and so her claims must be dismissed as a matter of law.
IV. COUNT I OF THE SECOND AMENDED COMPLAINT MUST BE DISMISSED AGAINST WVDCR SINCE IT IS NOT A PERSON.
WVDCR is entitled to dismissal under Count I of the Second Amended Complaint as a matter of law because it is not a “person” subject to suit in this court under 42 U.S.C. § 1983. That section provides a remedy to parties who are deprived of protected civil rights by “persons” acting under color of any state “law, statute, ordinance, regulation, custom, or usage.” The Supreme Court in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) held that neither a state nor its agencies are “persons” under § 1983. The Fourth Circuit has confirmed that it is “well settled” that a state or a state agency are not “persons” as required under 42 U.S.C. § 1983. See e.g Kelly v. State, 2007 U.S. Dist. LEXIS 95954 (D. Md. 2007) aff’d 267 F. App'x 209, 210, 2008 U.S. App. 1226 (4th Cir. 2008) (recognizing that it has been “well settled” that the state cannot be sued under 42 U.S.C. § 1983 and noting that “[a] cause of action under § 1983 requires the deprivation of a civil right by a “person” acting under color of state law.)
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Court I against WVDCR clearly falls within the category of attempted § 1983 actions that
cannot be brought under § 1983 because WVDCR is not a person. In similar cases, the State and
its agencies have been found not to be “persons” under § 1983 and have been dismissed from suit.
See Cochran v. W. Va. Reg'l Jail & Corr. Facility Auth., 2014 U.S. Dist. LEXIS 89893, at *8 (S.D.
W.Va. 2014)(holding W.Va. Regional Jail and Correctional Facility Authority, the predecessor to
WVDCR, is a state agency and that no § 1983 action could be brought against it) and Black v. West
Virginia, 2019 U.S. Dist. LEXIS 172020, at *10-12 (S.D. W.Va. 2019)(holding the State was
entitled to dismissal because it is not a “person” subject to liability or suit under § 1983). This
Court as a matter of law should dismiss WVDCR from Count I of the Second Amended Complaint.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC
/s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com
PATRICK MORRISEY ATTORNEY GENERAL
/s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
20

 
 Case 3:18-cv-01526 Document 275 Filed 07/17/20 Page 1 of 4 PageID #: 6354

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO ROBERT WATSON

NOW COMES the Defendant Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, in her official capacity only, and the West Virginia Division of

Corrections and Rehabilitation (“WVDCR”), by counsel, Webster J. Arceneaux, III, James C.

Stebbins, and Valerie H. Raupp of Lewis Glasser PLLC and Briana J. Marino, Assistant Attorney

General for the State of West Virginia, pursuant to Rule 56 of the Federal Rules of Civil Procedure,

and they moves this Honorable Court for summary judgment with regard to the claims of Robert

Watson as set forth herein as follows:

1. Plaintiff Robert Watson is a named plaintiff in the above styled civil action. At the time the Second Amended Complaint was filed on December 19, 2019, Mr. Watson was a pretrial detainee at Northern Regional Jail. Second Amended Complaint, Doc. 67 ¶ 19.

2. Plaintiff Watson clearly states in his Second Amended Complaint that this “is an action on behalf of inmates admitted to jail facilities throughout West Virginia . . . Plaintiffs seek to ensure that jails in West Virginia promptly provide appropriate and necessary medical and mental health treatment to inmates upon admission, . . .” Id. at ¶ 1.

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4. This Court should dismiss the claims of Plaintiff Watson for failure to exhaust his administrative grievance remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
5. This Court should likewise dismiss the deliberate indifference claims in Count I under the Eighth and Fourteenth Amendments, United States Constitution, under 42 U.S.C. § 1983, finding that Plaintiff Watson does not have sufficient evidence to support his Count I claims.
6. In addition, it is undisputed that all ten Regional Jails in West Virginia are certified by the National Commission on Correctional Health Care (“NCCHC”). This Court should conclude as a matter of law that NCCHC certification indicates that the ten Regional Jails in West Virginia meet the deliberate indifference standards under the Eighth and Fourteenth Amendments, United States Constitution, United States Constitution, and all claims by Plaintiff Watson under Count I should be dismissed.
7. This Court should likewise dismiss the Count II claims under the Americans with Disability Act (“ADA”), 42 U.S.C § 12132, finding that neither Plaintiff Watson nor any other Plaintiffs have sufficient evidence to support their ADA claims under Count II.
8. Finally, this Court should at a minimum conclude that the claims in Count I under 42 U.S.C. § 1983 should be dismissed against WVDCR since it is not a person under that provision.
WHEREFORE, based upon the foregoing, as more fully discussed in the Memorandum of Law in Support, Defendants respectfully request that this Court enter an order dismissing Plaintiff Robert Watson’s claims for declaratory and injunctive under Count I and II of the Second Amended Complaint in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
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Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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Case 3:18-cv-01526 Document 275 Filed 07/17/20 Page 4 of 4 PageID #: 6357

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 17th day of July 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AS TO ROBERT WATSON” and the “MEMORANDUM
OF LAW IN SUPPORT” via the CM/ECF system that will send notification to the following
counsel of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 276 Filed 07/17/20 Page 1 of 21 PageID #: 7027

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO ROBERT WATSON

Defendants, by counsel, pursuant to Rule 56 of the Federal Rules of Civil Procedure, have

moved this Honorable Court for summary judgment with regard to the claims of Robert Watson

as set forth in the accompanying Motion for Summary Judgment. For the reasons set forth below,

this Plaintiff’s claims should be dismissed with prejudice.

STATEMENT OF FACTS

Plaintiff Robert Watson is currently housed at the Northern Regional Jail (“NRJ”) in

Marshall County, West Virginia. He had previously been incarcerated for years at various prison

facilities in West Virginia serving a sentence for incest. He was admitted to NRJ on September

30, 2019 when he was transferred from a facility in Belmont County, Ohio after being arrested for

failing to register as a sex offender related to his prior incest conviction. See Second Amended

Complaint, Doc. 67 ¶ 134 and Watson depo. Exhibit 1 at p. 11. Mr. Watson claims that he is deaf,

has COPD, arthritis, and that he suffers from insulin dependent diabetes which causes him nerve

pain and affects his vision. See Doc. 67 ¶ 132.

Mr. Watson has four basic complaints related to his medical care since his most recent

admission to NRJ on September 30, 2019: 1) he claims that upon his admission and while he was

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in booking, “his hearing aids were confiscated [and] they have never been returned” (Id. at ¶ 135); 2) he claims that his insulin dependent diabetes is not being treated correctly or with the appropriate diet and dosages of insulin (Id. at ¶¶ 137-139); 3) he alleges that he is “not receiving any treatment for his diabetic nerve pain or arthritis” (Id. at ¶143); and 4) he claims that he has not been provided an inhaler or other treatment for his COPD and that he suffers “constant discomfort in his left lung” (Id. at ¶ 142). None of these claims have any basis in reality.
First of all, it should be noted that despite the extensive list of medical issues described above, for some strange reason, when Mr. Watson was admitted to NRJ in September of 2019, he specifically denied having any medical problems whatsoever. See relevant portion of Watson medical records at Bates No. 119035.1 When Mr. Watson was asked in his deposition if he had possibly told a nurse that he had no medical problems, Mr. Watson incredibly acknowledged: “[i]f I was angry because of something they had done to me while I was watching them, I would have probably said something like that sure.” Exhibit 1 at p. 131. Mr. Watson seems to believe that he can somehow punish NRJ by purposefully avoiding medical care and by intentionally misleading medical personnel.
Regarding his hearing aid, while plaintiff alleges in the Second Amended Complaint that his hearing aids were confiscated in “booking” when he arrived for his last visit to NRJ in September of 2019, his sworn testimony does not support this claim and shows that plaintiff really has no idea what happened to his hearing aid. In fairness to Mr. Watson, he initially testified that the hearing aid was confiscated from him in “booking” at NRJ in September of 2019 as stated in the Second Amended Complaint. See Exhibit 1 at p. 16. However, he was then reminded that in September of 2019, he had transferred into NRJ from a jail in Belmont County, Ohio to which he
1 The medical records are referenced but not provided due to the confidentiality of the inmate’s medical records. They will be filed under seal if the Court so requests.
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agreed. Id. at p. 17. Plaintiff was then showed a document that he purportedly signed at the Belmont County jail acknowledging the personal property he had with him upon admission there and this form does not list a hearing aid. See Belmont County Jail property log, Exhibit 2 (Bates No. 116529). Plaintiff then admitted that he did not have his hearing aid with him when he was picked up at the “Salvation Army” by the Belmont County Sheriff. Exhibit 1 at p. 18. Plaintiff also admitted that he never received his hearing aid while at the Belmont County Jail and that it was never brought to him by anyone when he was later booked into NRJ. Id. at pp. 18-19. Plaintiff was then asked “[s]o you never had your hearing aid at Northern Regional Jail” to which plaintiff replied “[t]o my knowledge it is still at the Salvation Army. Ten months later, I doubt very much that they have it, either.” Id. at p. 19. NRJ has no record whatsoever that Mr. Watson had a hearing aid when he arrived at NRJ in September of 20192 and there is also no record that Mr. Watson ever requested one during his most recent incarceration.
Regarding the insulin treatment for his diabetes, plaintiff’s medical records prove that he has received extensive medical care at NRJ for his diabetes. However, the records and plaintiff’s testimony make it quite obvious that plaintiff is often very uncooperative in his care and that he routinely refuses treatments or medications. Plaintiff generally admits that the jail medical personnel at least try to check his blood sugar daily. Id. at p. 42. Plaintiff admits that even though he has been prescribed insulin three times a day, he “never” agrees to take his first dose at 4:00 a.m. because he does not think he needs it. Id. at p 43. The medical records show that Mr. Watson consistently refuses insulin treatment, sometimes for weeks at a time. For example, in November of 2019, his Medical Administration Record (MAR) shows that Mr. Watson had only 7-10%
2 WVDCR had previously purchased hearing aids for Mr. Watson in the Spring of 2019 while he was still incarcerated and serving his initial sentence for incest. Upon information and belief, the hearing aids were still in his possession when he left WVDCR custody in June of 2019 but he did not have them with him when he reentered WVDCR custody and checked in to NRJ on September 30, 2019.
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compliance with his recommended insulin therapy which means that he was refusing recommended Novolin treatments 90-93% of the time during that month. Medical records at Bates Nos. DCR 120374-120386. Plaintiff’s medical records also show that Mr. Watson would sometimes randomly decide he wanted to start taking his insulin again. For example, on December 7, 2019, Mr. Watson filled a grievance in which he indicated that “I want to start taking my insulin again.” See Watson grievances, Exhibit 3 at Bates No. 116506. This obviously means that at some point prior to December 7, 2019, Mr. Watson had decided that he did not want to take his insulin. Medical personnel cannot force an inmate to take insulin. To receive appropriate treatment for diabetes, an inmate must comply with the recommendations of their medical providers and the facility cannot be held responsible if the inmate refuses insulin therapy for no apparent reason.
Regarding his diabetic nerve pain and arthritis, in the Second Amended Complaint, Mr. Watson alleges that he is not receiving “any treatment” at all. See Second Amended Complaint (Doc. 67) at p. 143. However, in his deposition, he admitted that he receives Ibuprofen for his pain. See Exhibit 1 at p. 7. When asked “does it help?”, Mr. Watson replied “yes.” The MAR reports show that Mr. Watson is much more compliant with his Ibuprofen regimen and for some months was 100% in compliance. See medical records at DCR 120374-120386. This proves that Mr. Watson hears what he wants to hear and that he is compliant with the medical calls that he wants to be compliant with. It also shows that he was receiving appropriate treatment for his pain.
Mr. Watson’s last Complaint involves the alleged lack of treatment for COPD with an Albuterol inhaler. Mr. Watson admitted in his deposition that he only requires Albuterol on an “as needed” basis for breathing difficulties. See Exhibit 1 at p. 59. However, when Mr. Watson was asked whether he ever reported breathing difficulties at NRJ, he freely admitted “[n]one that was
4

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reported, no.” Id. at p. 63. Mr. Watson also denied that he had ever received a spray for breathing difficulties while at NRJ even when he was there earlier on the prison side in early to mid 2019. Id. at p. 62-63. However, the MAR reports from NRJ for February, May, and June of 2019 show that plaintiff was regularly given Alvesco, which is an inhaler used by people with breathing difficulties. See medical records referenced. Mr. Watson’s testimony is inconsistent with the medical records.
Finally, Mr. Watson admits that he was generally familiar with the grievance procedure at NRJ. See Exhibit 1 at p. 70-71. In fact, plaintiff filed 21 separate electronic kiosk grievances at NRJ between May 22, 2019 and February 24, 2020. See Watson grievances, Exhibit 3 at Bates Nos. 116500-116516. These grievances dealt with insulin/diabetes, hearing aid batteries, an inhaler, a wheelchair, supplies, legal issues, and inmate issues. Id. However, plaintiff never appealed any of these grievances even though he admits that he had appealed grievances at other facilities in the past and was familiar with the appeal process. See Exhibit 1 at p. 76.
STANDARD OF REVIEW Under Rule 56(c), Federal Rules of Civil Procedure, “Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is ‘no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”’ Kitchen v. Summers Continuous Care Center, LLC, 552 F.Supp.2d 589, 592 (S.D. W.Va. 2008). “The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 322-323 (1986). “The nonmoving party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]’” Piedmont Behavioral Health Ctr., LLC v. Stewart, 413 F.Supp.2d 746, 751 (S.D. W.Va. 2006).
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District Courts in West Virginia have applied this standard in granting motions for summary judgment in appropriate inmate cases involving Eighth Amendment issues related to health care and other matters. See Langley v Arresting Officers,2020 U.S. Dist. LEXIS 56160 (S.D. W.Va. 2020); Smith v PrimeCare Medical, et al., 2020 U.S. Dist. LEXIS 101065 (S.D. W.Va. 2020); and, Salmons v. Western Regional Jail, 2020 U.S. Dist. LEXIS 97540 (S.D. W.Va. 2020). As set forth below, even assuming Plaintiff’s allegations are true, as a matter of law, Defendants cannot be held liable for the remaining allegations as set forth in Counts I and II of the Second Amended Complaint.3
ARGUMENT I. PLAINTIFF ROBERT WATSON HAS NOT EXHAUSTED HIS
ADMINISTRATIVE REMEDIES AS TO ANY CONDITION OF CONFINEMENT REFERENCED IN THE SECOND AMENDED COMPLAINT AND THEREFORE, IT SHOULD BE DISMISSED. Plaintiff Robert Watson failed to exhaust his administrative remedies the Prison Litigation Reform Act of 1995, ("PLRA"), 42 U.S.C. § 1997 et seq. prior to seeking judicial redress. Defendants argue that all of Plaintiff’s claims related to the alleged failure by Defendants to provide medical and mental health treatment to inmates upon admission to a Regional Jail should be dismissed because prisoners are required to exhaust their administrative remedies in making complaints regarding prison treatment prior to bringing an action in court and that requirement was not met for any of Plaintiff Watson’s claims. Likewise, any claim for a failure to accommodate a disability or claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12133 (“ADA”). Specifically, Defendants argue that Plaintiff Watson failed to do the following: (1) provide evidence of exhaustion; (2) timely appeal the decisions; and (3) grieve or exhaust issues
3 This Court may note that only the allegations in Counts I and II of the Second Amended Complaint remain as the parties stipulated to the dismissal of the conditions of confinement allegations in Count III of the Second Amended Complaint. Doc. 223.
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related to medical treatment prior to the filing of the Second Amended Complaint. Further, there are no issues of fact regarding whether the grievance process is "available" to Plaintiff Watson.
The PLRA, 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The term “prison conditions” as utilized by the PLRA is defined as “...conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings.” 18 U.S.C. § 3626(g)(2). In Porter v. Nussle, 534 U.S. 516, 531 (2002), the United States Supreme Court held that “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” The exhaustion requirement also applies regardless of the relief sought by the inmate through the administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001).
“Not only must a prisoner exhaust his administrative remedies, but he must also do so properly.” Wells v. Parkersburg Work Release Ctr., 2016 U.S. Dist. LEXIS 21026, 2016 WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 U.S. Dist. LEXIS 20459, 2016 WL 707457 (S.D. W. Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)).
If a plaintiff fails to exhaust his or her administrative remedies under the PLRA, then the defendant is entitled to judgment as a matter of law. Legg v. Adkins, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017). Whether an administrative remedy has been exhausted
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for purposes of the PLRA “is a question of law to be determined by the judge.” Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, 2017 WL 4004579, at *3 (S.D. W. Va. 2017) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)). Thus, disputed questions of fact regarding exhaustion of administrative remedies are resolved by the court. See id. The benefits of requiring exhaustion “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Jones v. Bock, 549 U.S. 199 , 219 (2007) (citing Woodford v. Ngo, 548 U.S. 81 , 88-91 (2006)).4
The West Virginia Division of Corrections and Rehabilitation (WVDCR), formerly the West Virginia Regional Jail and Correctional Facility Authority,5 provides a grievance procedure in order to ensure direct access to an administrative remedy for inmates regarding all aspects of their confinement, including claims for medical care and conditions of confinement. The Inmate Handbook sets forth the formal process through which an inmate may seek “redress over any matter concerning prison life.” See Exhibit 4, Excerpts of Inmate Handbook for Regional Jail Inmates. Under Grievance Procedure outlined in the Inmate Handbook, an inmate may file a grievance to administrator/superintendent and, if unsatisfied by the response or if the response is not timely received in the manner prescribed by policy, the inmate may appeal to the Chief of
4 Like the PLRA, the WVPLRA "require[s] inmates to exhaust their administrative remedies before they bring a lawsuit." Legg v. Adkins, No. 2:16-cv-01371, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017) (citing 42 U.S.C. § 1997e(a); W. Va. Code § 25-1A-2a(i)). Under the WVPLRA, "[a]n inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted." W. Va. Code § 25-1A-2(c). The WVPLRA defines an ordinary administrative remedy as "a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life. . . .which includes health care" Id. § 25-1A-2(a). This Court should conclude that Plaintiff Watson also failed to exhaust his grievances under the WVPLRA as well. 5 Per House Bill 4338 (2018) the West Virginia Regional Jail and Correctional Facility Authority was consolidated with the West Virginia Division of Corrections and West Virginia Division of Juvenile Services to form the West Virginia Division of Corrections and Rehabilitation. This newly-formed entity assumed responsibility for the operations of WRJ on July 1, 2018.
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Operations. Id. Again, if the inmate is not satisfied with the response received or does not receive a timely response, a third level of administrative oversight is included in the policy: an appeal to the Commissioner of WVDCR. Id.
While the PLRA requires administrative exhaustion prior to an inmate seeking judicial resolution of a complaint, an inmate is only required to exhaust those administrative remedies which are actually available. 42 U.S.C. § 1997e(a) ) (“The PLRA, however, requires exhaustion of only ‘such administrative remedies as are available.’”). "The availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is “on the books.” Ross v. Blake, 136 S. Ct. 1850 , 1859, 195 L. Ed. 2d 117 (2016)). Rather, a remedy is available only if it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
The Supreme Court noted three specific instances in which a remedy would not be “available” for purpose of PLRA exhaustion. Id. “First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross 136 S. Ct. at 1859, (citing Booth, 532 U.S. at 736, 738). Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Id. “[W]hen a remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable.” Id. Finally, the third scenario in which the Supreme Court would find a remedy unavailable is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, once the defendant has made a threshold showing of failure to exhaust, the burden of showing that
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administrative remedies were unavailable falls to the plaintiff. Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, *11, 2017 WL 4004579 (S. D. W. Va. 2017).
In the present civil action, Plaintiff Watson alleges that he did not receive adequate medical or mental health care while incarcerated at Northern Regional Jail and this forms the basis for both Count I and Count II of the Second Amended Complaint. Therefore, Plaintiff’s suit is subject to the requirement that all administrative remedies be exhausted prior to filing suit. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003). Here, Plaintiff Watson filed approximately twenty-one grievances on the kiosk and six handwritten grievances for a total of approximately twenty seven grievances. Exhibit 3. Thirteen of these were filed after this action was commenced and six were filed prior to his incarceration on September 30, 2019. Out of the remaining seven grievances only four relate to the claims at hand, none of which were appealed. Id. Further, Mr. Watson even admits to never filing grievances about not getting his medication. (Depo p. 43 ¶23-24; Depo p. 44 ¶1). Therefore, clearly if he had complaints about his medical care, these complaints were not made via the proper grievance procedures and his administrative remedies were not exhausted as required by the PLRA and WVPLRA.
Moreover, the grievance process is available to all inmates and certainly to Plaintiff Watson. Mr. Watson admits that he was generally familiar with the grievance procedure at NRJ. Exhibit 1 at p. 70-71. He filed 21 separate electronic kiosk grievances at NRJ between May 22, 2019 and February 24, 2020. Exhibit 3. Although, Plaintiff never appealed any of these grievances even though he admits that he had appealed grievances at other facilities in the past and was familiar with the appeal process. Exhibit 1 at p. 76. Furthermore, Plaintiff Watson accessed
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and viewed the Inmate Handbook at least three times. See Exhibit 6, inmate kiosk view log. The Inmate Handbook and the grievance process are readily available via electronic means on the Kiosk and the grievances are filed on the same kiosk that contains the inmate handbook. Exhibit 4; see, also, Exhibit 6, kiosk screenshot. Clearly, he is aware of and able to use the grievance process on both the kiosk and on by using hand-written forms.
The rationale behind pre-suit exhaustion is pragmatic, “if during the pendency of a suit, the administrative process was to produce results benefitting plaintiff, the federal court would have wasted its resources adjudicating claims that could have been resolved within the prison grievance system at the outset. King, 2011 U.S. Dist. LEXIS at *12 citing Neal v. Goord, 267 F.3d 116, 12122 (2d Cir. 2001).
Looking at this evidence as a whole, the Court must conclude that there are no genuine issues of material facts regarding whether the grievance process is available to Plaintiff Watson and whether he properly exhausted the administrative remedies prior to bringing this issue before this Court. Plaintiff effectively utilized the grievance process during his period of incarceration.
“[T]he PLRA[‘]s exhaustion requirement requires proper exhaustion” to include all steps that the agency has established and doing so consistent with the instructions provided. Woodford v. Ngo, 548 U.S. 81, 90 & 93 (2006). In this case, the requirements were set forth in the grievance procedure in the Inmate Handbook. Plaintiff failed to exhaust those administrative remedies available to him and, accordingly, Defendants are entitled to summary judgment on both Counts I and II as a result of his failure to exhaust his available administrative remedies under the PLRA.
II. THIS COURT SHOULD CONCLUDE AS A MATTER OF LAW THAT ALL OF THE DELIBERATE INDIFFERENCE CLAIMS FOR LACK OF MEDICAL AND MENTAL HEALTH TREATMENT UNDER COUNT I OF THE SECOND AMENDED COMPLAINT ARE WITHOUT MERIT.
Although an inmate is plainly entitled to receive adequate medical and mental health care
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while incarcerated, no inmate is entitled to receive nor may he or she insist that the State of West Virginia provide him with, the most sophisticated care that money can buy. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.1987). Rather the constitution only requires at Regional Jails, the facilities at issue under the Second Amended Complaint, that certain minimum standards of medical and mental health treatment are met, “not that they cater to the individual preference of each inmate.” Chase v. Quick, 596 F. Supp. 33, 35 (D.R.I. 1984). Deliberate indifference to a serious medical or mental health need of an inmate, including psychiatric care, can constitute unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976).
To adequately plead and prove an Eighth Amendment claim of deliberate indifference to the medical or mental health needs of an inmate, Plaintiff Watson must satisfy a two-part test comprised of both objective and subjective components. First, Plaintiff must prove that the alleged deprivation of mental health treatment was “objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In order to satisfy the objective prong in a conditions of confinement claim, the prisoner must “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions,” or “demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions.” Importantly, “only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim.” Shakka v. Smith, 71 F.3d 162 (4th Circ. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 8-9 (1993).
Second, Plaintiff Watson must demonstrate by competent, reasonable, and admissible evidence that the prison official had “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3. This subjective prong of the test requires Plaintiff to prove that Defendants had actual
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knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. Only when the official is “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [draws] the inference[]” does the requisite degree of culpability exist to satisfy the second element of the inquiry. Id. Neither negligence nor medical malpractice in diagnosis or treatment of an inmate’s medical/mental health condition may give rise to an Eighth Amendment deliberate indifference claim.
Importantly, the Fourth Circuit reviews Eighth Amendment claims based on the totality of the circumstances. See, Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir. 1976); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 865 (4th Cir. 1975). This Court followed this same deliberate indifference standard related to the COVID-19 conditions at West Virginia Regional Jails and Prisons in its Order in this case denying the preliminary injunction, Doc. 183 at pp. 13-14, as the Court found that the inmates could not meet that standard.
This Court’s decision on COVID-19 is well-reasoned and it equally applies in this instance. Just as Defendants had a plan to deal with the coronavirus, they have a contract to deal with medical and mental health needs in this case. As set forth in paragraph 4 of the affidavit of Commissioner Jividen (Exhibit 7):
DCR contracts with PrimeCare Medical, Inc. to provide health care to inmates at nine of the Regional Jails, all except for Northern Regional Jail. Health care is provided to inmates at Northern through Wexford Health Sources, Inc. Wexford also provides health care for all of the inmates at the Correctional Centers. Pursuant to the contracts, PrimeCare and Wexford are required to provide the proper staffing and adequate health care for inmates at their respective facilities. Id. The Court has further been provided with copies of the contracts with PrimeCare and Wexford for its review. A. Plaintiff Watson Has Failed to Establish that Defendants were Deliberately
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Indifferent to a Substantial Risk of Serious Harm to Plaintiff. Plaintiff Watson cannot establish facts sufficient to proceed under § 1983 as to the objective prong of Farmer v. Brennan, supra. Under that prong, the Second Amended Complaint must allege that specific prison officials were deliberately indifferent to a risk of serious harm to the Plaintiff. Even assuming, arguendo, that Plaintiff Watson had properly pled the requisite "serious deprivation" for an Eighth Amendment claim, Plaintiff cannot establish sufficient facts to establish “deliberate indifference” specifically as to Defendants.6 Commissioner Jividen has set forth in her affidavit that she is an attorney, not a licensed healthcare provider and that Defendants have no role in the delivery of healthcare in the Regional Jails. Exhibit 7 ¶¶ 8-9. Deliberate indifference requires a showing that the official was subjectively aware of a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (U.S. 1994). In order to possess this level of culpability, “the official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id. To be liable, the prison officials must actually know of and disregard the risk. Id. at 837. The Fourth Circuit has characterized the deliberate indifference standard as an “exacting one. Lightsey, 775 F.3d at 178.” Jones v. Chapman, 2017 U.S. Dist. LEXIS 87907 at *87-91 (D. Md. June 7, 2017). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness . . .” Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319 ( 4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986).” Id. “Deliberate indifference is a very high standard-a showing of mere negligence
6 The only parties with the requisite knowledge regarding the delivery of medical and mental health care that should have been sued here, but were not, are PrimeCare and Wexford. This Court may note that the Defendants tried to join them as third-party defendants earlier, but the Plaintiffs opposed this joinder, and this Court agreed. Doc. 110.
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will not meet it .. . [T]he Constitution is designed to deal with deprivations of rights, not errors in judgments, even though such errors may have unfortunate consequences . . .” Grayson v. Peed, 195 F.3d 692, 695-96 ( 4th Cir. 1999).
Magistrate Tinsley, writing for this district, recently addressed a very similar situation regarding medical care for an inmate in a proposed findings and recommendations for disposition in Greene v. Ballard, 2020 U.S. Dist. LEXIS 59180 (S.D. W.V. 2020), aff’d. 2020 U.S. Dist. LEXIS 53023 (S.D. W.V. 2020). In examining the second factor under the Farmer decision, Magistrate Tinsley at pp. 26-27, stated:
Defendants Ballard, Frame, Clifford, Mitchell, and Snyder appear to be correctional or administrative staff, and not licensed healthcare providers. The Second Amended Complaint does not specifically allege that any of these defendants interfered with the treatment being provided to Greene for his medical needs. To the extent that the Second Amended Complaint alleges that Greene was denied the ability to attend follow-up outside doctor's appointments, he has failed to specifically identify which defendant or defendants made those decisions….Thus, the Second Amended Complaint falls woefully short of sufficiently pleading the subjective component necessary to state a plausible claim of deliberate indifference on this basis. This Court should consider the decision in Greene and the deliberate indifference standard and reach a similar conclusion. In the instant matter, Plaintiff has made allegations against Defendants that they were deliberately indifferent to his medical needs based on the care he received. It is undisputed in this case that none of those specific care allegations relate to any conduct by Defendnats. Instead, they appear to be ground in policies. There is no indication; however, that Defendants were either 1) aware of the specific allegations of Plaintiff (nor could there be because he failed to properly follow the administrative procedure in place until after the instant action was filed) and 2)that they were aware or intended for the policies to be an excessive risk to any inmate. Plaintiff has not identified a specific policy or procedure that the allege Defendants knew was medically inappropriate under
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the deliberate intent standard and therefore Plaintiff cannot show “a sufficiently culpable state of
mind.” Wilson, 501 U.S. at 302-3 nor can he show that Defendants had an actual knowledge of
and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. This Court
should determine as a matter of law that Plaintiff has wholly failed to martial the necessary fact to
establish deliberate indifference on the part of Defendants. As such, all claims under Count I of
the Second Amended Complaint must be dismissed as a matter of law.
B. Commissioner Jividen has required that PrimeCare and Wexford Maintain NCCHC Accreditation and this Court Should Rule as a Matter of Law that Meeting NCCHC’s Standards are Substantial Evidence of Compliance with the Constitutional Standards of Deliberate Indifference.
As set forth in Commissioner Jividen’s affidavit:
a part of the contracts, each health care facility operated by PrimeCare and Wexford are required to be accredited by National Commission on Correctional Health Care ("NCCHC"), a nationally recognized organization with the mission of improving the quality of health care in prisons. Every couple of years the NCCHC does a thorough audit of each facility and they review compliance with 39 essential standards and 20 important standards. The NCCHC requires 100% compliance with the essential standards for a facility to receive its accreditation. If you are not in full compliance with the essential standards, a contingent approval is provided and the facility is given a period of time to meet all of the essential standards. Exhibit 7 ¶ 5. In pargraphs 6-7 of her affidavit, she further attests that all nine of the PrimeCare
Regional Jail health care facilities have met the NCCHC accreditation standards and Wexford has
received contingent approval for its health care facility at Northern Regional Jail.
The District Court in Balla v. Idaho State Board of Corrections, 2020 U.S. Dist. LEXIS
95915 (D. Idaho 2020) recently examined the NCCHC standards in an Eighth Amendment
deliberate indifference case related to medical and mental health for inmates that has been ongoing
for almost 40 years. In that case, the district court discussed at length the NCCHC standards and
considered them as evidence of compliance with the Eighth Amendment deliberate indifference
standard. The district court made clear that the NCCHC standards, as “best practices” are not the
“constitutional floor” but something to be considered along with the fact in the case. Id. at p. 29. 16

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Based upon the foregoing and the evidence in the case, the district court dismissed the case. Likewise, in this case, this Court should consider the NCCHC standards for accreditation and the evidence in the case, and conclude as a matter of law that all claims under Count I of the Second Amended Complaint must be dismissed against Defendants.
III. ALL CLAIMS UNDER COUNT II OF THE SECOND AMENDED COMPLAINT RELATED TO THE AMERICANS WITH DISABILITY ACT SHOULD BE DISMISSED AS A MATTER OF LAW.
Plaintiff’s claims in Count II of the Second Amended Complaint fall under Title II of the Americans with Disabilities Act (“ADA”) likewise fail. In order to present a claim under the ADA, Plaintiff must establish: “(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program or activity; and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against on the basis of their disability.” Gordon v. Tygart Valley Reg’l Jail, 2013 U.S. Dist. LEXIS 28444 (N.D. W. Va. 2013)(citing Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 498 (4th Cir. 2005)).
First, out of an abundance of caution, because there is some vagueness as to the basis of the Plaintiff’s ADA allegations based on the discovery to date, to the extent that Count II attempts to assert a claim against either Defendant under Title II of the ADA based on allegations that do not implicate constitutional rights, those claims are barred by sovereign immunity. See Sims v. Marano, 2020 U.S. Dist. LEXIS 20384 at 14-15 (W.D. Va. 2020)(Mem. Op.)(citing United States v. Georgia, 546 U.S. 151 (2006) and Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007)). To the extent that Count II attempts to assert a Title II claim under the ADA against Defendant Jividen in her official capacity, those claims are limited to prospective injunctive relief. Id. at 17.
Second, with regard to Title II clams under the ADA that are based on alleged constitutional
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violations, for the purposes of this Motion only, Defendants will assume Plaintiffs can meet the threshold to be considered disabled. However, even assuming, arguendo, that Plaintiff is disabled under this standard “courts routinely dismiss ADA suits by disabled inmates that allege inadequate medical treatment, but do not allege that the inmate was treated differently because of his/ her disability.” Id. at 10. The Court found “it is not enough, in asserting a Title II discrimination claim under the ADA, for the Plaintiff to show that he received inadequate care in light of his disability. He must demonstrate that he was excluded from participation in a program or activity, or otherwise discriminated against, on the basis of his disability.” Id. at 12. In this case, Plaintiff Watson cannot demonstrate such discrimination or that a request for accommodation that was denied and appealed through the required administrative process.
In the Second Amended Complaint, Plaintiff Watson claims that all Plaintiffs did not receive necessary accommodations for disabilities to enable them to participate in jail life in the same manner as non-disabled inmates. (Doc. 67) at ¶ 185. In addition, he has alleged that Plaintiffs were discriminated against by Defendants generally failing to provide reasonable accommodations. Id. at ¶ 186. The Amended Complaint further appears to allege that the policies related to medical treatment, including mental health services, “immediately upon entry to the State jails” Defendants have violated the ADA and discriminated against the Plaintiffs. Id. at ¶ ¶ 257 and 258.
To the extent that Plaintiff attempts to argue that his ADA claims are based on the same facts as the allegations related to the claim of deliberate indifference discussed supra, Plaintiff’s argument fails. Plaintiff Watson’s Second Amended Complaint does not allege that he is receiving different medical care because of his disability. Accordingly, any claim related to medical care appears to be that the medical care received was inadequate. At set forth above, the Second
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Amended Complaint allegations related to medical care fail to meet the deliberate indifference standard and must be dismissed. Regardless, it is well settled that a claim of inadequate medical care is insufficient to establish a claim under the ADA. See Gordon, supra. See also Mondowney v. Balt. Cty. Det. Ctr., 2019 U.S. Dist. LEXIS 119566, p. 58-59 (D. Md. 2019)(discussing cases finding that a lack of medical treatment does not violate rights under the ADA); Spencer v. Easter, 109 F. Appx. 571, 773 (4th Cir. 2004)(failure to provide timely medication refills not an ADA violation); Bryant v. Madigan, 84 F. 3d. 246, 249 (7th Cir. 1996)(ADA not violated by a simple failure to attend to the medical needs of disabled prisoners).
Plaintiff Watson has failed to articulate how he has been treated differently because of his alleged disabilities with regard to any jail program or service. Plaintiff has not identified any program or service that that he sought to participate in and was denied entry based on his disability. Instead, the allegations in the Second Amended Complaint are generally stated as a lack of accommodation and a general reference to policies. However, when asked in discovery to identify any evidence of an ADA violation, Plaintiff provided no specific information, he simply objected to the timing, calling the interrogatory an “improper block buster request, and calls for a legal conclusion that Plaintiff is not qualified to answer,” and, notwithstanding that objection and without waiving the same, he identified his medical conditions but no specific policy, program, accommodation or other specific alleged ADA violation. See Exhibit 8, plaintiff Watson’s response to Interrogatory No. 21. To the extent that the allegations at issue are related to an accommodation for a disability, even general accommodations, they are subject to the exhaustion requirements of the PLRA. See e.g. O’Guinn v. Lovelock Corr. Ctr. 502 F.3d 1056, 1061-62 (9th Cir. 2007)(discussing plain language of PLRA requiring exhaustion of administrative remedies before bringing ADA and Rehabilitation Act claims); Corpening v. Hargrave, 2015 U.S. Dist.
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80447, 10-11 (W. D. N.C. 2015) (same). As discussed supra, Plaintiff failed to exhaust the available administrative remedies for any requested accommodation prior to filing suit and so his claims must be dismissed as a matter of law.
IV. COUNT I OF THE SECOND AMENDED COMPLAINT MUST BE DISMISSED AGAINST WVDCR SINCE IT IS NOT A PERSON.
WVDCR is entitled to dismissal under Count I of the Second Amended Complaint as a matter of law because it is not a “person” subject to suit in this court under 42 U.S.C. § 1983. That section provides a remedy to parties who are deprived of protected civil rights by “persons” acting under color of any state “law, statute, ordinance, regulation, custom, or usage.” The Supreme Court in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) held that neither a state nor its agencies are “persons” under § 1983. The Fourth Circuit has confirmed that it is “well settled” that a state or a state agency are not “persons” as required under 42 U.S.C. § 1983. See e.g Kelly v. State, 2007 U.S. Dist. LEXIS 95954 (D. Md. 2007) aff’d 267 F. App'x 209, 210, 2008 U.S. App. 1226 (4th Cir. 2008) (recognizing that it has been “well settled” that the state cannot be sued under 42 U.S.C. § 1983 and noting that “[a] cause of action under § 1983 requires the deprivation of a civil right by a “person” acting under color of state law.)
Court I against WVDCR clearly falls within the category of attempted § 1983 actions that cannot be brought under § 1983 because WVDCR is not a person. In similar cases, the State and its agencies have been found not to be “persons” under § 1983 and have been dismissed from suit. See Cochran v. W. Va. Reg'l Jail & Corr. Facility Auth., 2014 U.S. Dist. LEXIS 89893, at *8 (S.D. W.Va. 2014)(holding W.Va. Regional Jail and Correctional Facility Authority, the predecessor to WVDCR, is a state agency and that no § 1983 action could be brought against it) and Black v. West Virginia, 2019 U.S. Dist. LEXIS 172020, at *10-12 (S.D. W.Va. 2019)(holding the State was entitled to dismissal because it is not a “person” subject to liability or suit under § 1983). This
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Court as a matter of law should dismiss WVDCR from Count I of the Second Amended Complaint.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
21

 
 Case 3:18-cv-01526 Document 277 Filed 07/17/20 Page 1 of 5 PageID #: 7048

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO JOSHUA HALL

NOW COMES the Defendant Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, in her official capacity only, and West Virginia Division of

Corrections and Rehabilitation, by counsel, Webster J. Arceneaux, III, James C. Stebbins, and

Valerie H. Raupp of Lewis Glasser PLLC and Briana J. Marino, Assistant Attorney General for

the State of West Virginia, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and they

move this Honorable Court for summary judgment with regard to the claims of Joshua Hall as set

forth herein as follows:

1. Plaintiff Hall is a named plaintiff in the above styled civil action. At the time the Second Amended Complaint was filed on December 19, 2019, he was convicted and an inmate at North Central Regional Jail. Doc. 67 at ¶ 17.

2. Specifically, Plaintiff Hall was previously incarcerated at the North Central Regional Jail in Doddridge County, West Virginia from October 1, 2019 to the end of February 26, 2020. Plaintiff Joshua Hall is currently serving a sentence of 1-5 years for Strangulation. Mr. Hall is currently incarcerated at Potomac Highlands Regional Jail in Hampshire County, West

Case 3:18-cv-01526 Document 277 Filed 07/17/20 Page 2 of 5 PageID #: 7049
Virginia. But for the coronavirus, he would have already been transferred to a prison facility. See Affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(f)).
3. Plaintiff Hall clearly states in his Second Amended Complaint that this “is an action on behalf of inmates admitted to jail facilities throughout West Virginia . . . Plaintiffs seek to ensure that jails in West Virginia promptly provide appropriate and necessary medical and mental health treatment to inmates upon admission, . . .” Doc. 67 at ¶ 1. It is also undisputed that “Plaintiffs bring this suit seeking solely declaratory and injunctive relief.” Doc. 67 at ¶ 2. Plaintiff Hall’s claims for declaratory and injunctive relief should be considered moot, as Plaintiff would no longer be housed in a West Virginia Regional Jail facility but for the coronavirus as set forth in the affidavit of Jonathan E. Huffman, Exhibit 1 at ¶ 2(e). His transfer is imminent. In addition, his clams appear to be based on prior harms with no lasting effects which cannot the basis for injunctive relief.
4. This Court addressed a similar situation on a Motion to Dismiss filed by the West Virginia Regional Jail and Correctional Facilities Authority in S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at pp. 6-7, and it concluded that the Plaintiff’s claim for injunctive relief was mooted by his release.
5. This Court should likewise examine the facts and circumstances in this case and conclude that it is undisputed that Plaintiff Hall will be transferred from a Regional Jail facility to a prison, his claims are based on prior harms, and that none of the exceptions to the mootness doctrine are present in this case that would preclude this Court from dismissing the claim of Plaintiff Hall.
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6. In addition, this Court should dismiss the claims of Plaintiff Hall for failure to exhaust his administrative grievance remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
7. This Court should likewise dismiss the deliberate indifference claims in Count I of the Second Amended Complaint under the Eighth and Fourteenth Amendments, United States Constitution, under 42 U.S.C. § 1983, finding that Plaintiff Hall does not have sufficient evidence to support his Count I claims.
8. In addition, it is undisputed that all ten Regional Jails in West Virginia are certified by the National Commission on Correctional Health Care (“NCCHC”). This Court should conclude as a matter of law that NCCHC certification indicates that the ten Regional Jails in West Virginia meet the deliberate indifference standards under the Eighth and Fourteenth Amendments, United States Constitution, United States Constitution, and all claims by Plaintiff Hall under Count I should be dismissed.
9. This Court should likewise dismiss the Count II claims under the Americans with Disability Act (“ADA”), 42 U.S.C § 12132, finding that neither Plaintiff Hall nor any other Plaintiffs have sufficient evidence to support their ADA claims under Count II.
10. Finally, this Court should at a minimum conclude that the claims in Count I under 42 U.S.C. § 1983 should be dismissed against WVDCR since it is not a person under that provision.
WHEREFORE, based upon the foregoing, as more fully discussed in the Memorandum of Law in Support, which is incorporated herein by reference, Defendants respectfully request that this Court enter an order dismissing as moot the Plaintiff Joshua Hall’s claims for declaratory and injunctive under the Second Amended in this case, that the claims under Count I and II of the
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Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE

I, Webster J. Arceneaux, III, co-counsel for all Defendants, do hereby certify that on this 17th day of July 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AS TO JOSHUA HALL.” and the “MEMORANDUM OF
LAW IN SUPPORT” via the CM/ECF system that will send notification to the following counsel
of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ Webster J. Arceneaux, III_______ Webster J. Arceneaux, III, State Bar #155

Case 3:18-cv-01526 Document 278 Filed 07/17/20 Page 1 of 21 PageID #: 7695

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendant.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO JOSHUA HALL

Defendants, by counsel, pursuant to Rule 56 of the Federal Rules of Civil Procedure, have

moved this Honorable Court for summary judgment with regard to the claims of Joshua Hall as

set forth in the accompanying Motion for Summary Judgment. For the reasons set forth below,

this Plaintiff’s claims should be dismissed with prejudice.

STATEMENT OF FACTS Mr. Hall is 38 years old and is currently incarcerated at Potomac Highlands Regional Jail (“PHRJ”) in Hampshire County, West Virginia. See Deposition of Joshua Hall Exhibit 2 at p. 6, 8. He was previously incarcerated at the North Central Regional Jail (“NCRJ”) in Doddridge County, West Virginia from October 1, 2019 to the February 26, 2020. Id. at pp. 8- 9 and Exhibit 1 Huffman affidavit. He is currently serving a sentence for Strangulation. Id. at p. 10. Mr. Hall claims to have a long history of mental health issues including substance abuse disorder and anxiety. See Second Amended Complaint (Doc. 67) at ¶ 122. He also claims to suffer from tachycardia and high blood pressure. Id. Plaintiff claims that at the time he was incarcerated at NCRJ, he was taking Lexapro and Valium for his anxiety and Lopressor (a/k/a Meteoprobol) for his tachycardia and high blood pressure. Id. at ¶ 123.

Case 3:18-cv-01526 Document 278 Filed 07/17/20 Page 2 of 21 PageID #: 7696
Mr. Hall has only two medical complaints regarding his time at NCRJ: 1) he claims that upon his initial admission, he was in a holding cell for 4 days without his Lopressor and that made him feel ill and that he felt “sweaty, clammy, flushed, dizzy, and nauseas.” Id. at ¶ 127; and 2) he claims that after about one month at the facility, his Lexapro was abruptly stopped for about 20 days. Id. at ¶ 129. He does not appear to have complaints related to PHRJ.
Mr. Hall acknowledges that at intake, he was told that he could not take Valium while in jail. Exhibit 2 at p. 12. Regarding the Lexapro, the medical records directly contradict Mr. Hall’s allegation and show that he was given that medication early in the morning on October 2, 2019, the day after his admission to NCRJ. See Bates No. 116059.1 Similarly, the same medical record shows that Mr. Hall received Lopressor early in the morning on October 3, 2019, only 2 days after his arrival. Id.
Regarding the allegation that Mr. Hall later abruptly went 20 days without his Lexapro, he testified that this occurred at the end of October or beginning of November of 2019. Exhibit 2 at p. 16. However, the medical records do no show anything close to a 20 day period where Mr. Hall was without Lexapro in that time frame. The closest gap was a 9 day period from November 10, 2019 to November 19, 2019. See Bates No. 110661. Plaintiff admits that he never had any medical issues at NCRJ other than the above. Exhibit 2 at p. 27.
Mr. Hall never filed any grievances at NCRJ. However, he admitted in his deposition that he had a “general idea” that he could file a grievance using the kiosk system. Id. at p. 39-40.
STANDARD OF REVIEW Under Rule 56(c), Federal Rules of Civil Procedure, “Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is ‘no genuine issue as to
1 Plaintiff’s medical records are confidential and are not being produced in conjunction with this motion but they will be produced at the request of the Court under seal or using some other method to protect their confidentiality.
2

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any material fact and that the moving party is entitled to judgment as a matter of law.”’ Kitchen v. Summers Continuous Care Center, LLC, 552 F.Supp.2d 589, 592 (S.D. W.Va. 2008) (quoting Fed.R.Civ.P. 56(c)). “The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 322-323 (1986). “The nonmoving party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]’” Piedmont Behavioral Health Ctr., LLC v. Stewart, 413 F.Supp.2d 746, 751 (S.D. W.Va. 2006) (Goodwin, J.) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
District Courts in West Virginia have applied this standard in granting motions for summary judgment in appropriate inmate cases involving Eighth Amendment issues related to health care and other matters. See Langley v Arresting Officers,2020 U.S. Dist. LEXIS 56160 (S.D. W.Va. 2020); Smith v PrimeCare Medical, et al., 2020 U.S. Dist. LEXIS 101065 (S.D. W.Va. 2020); and, Salmons v. Western Reg. Jail, 2020 U.S. Dist. LEXIS 97540 (S.D. W.Va. 2020).
ARGUMENT I. PLAINTIFF JOSHUA HALL’S CLAIMS FOR INJUNCTIVE AND
DECLARATORY RELIEF REGARDING INMATE MEDICAL CARE AT WEST VIRGINIA JAILS ARE MOOT BECAUSE HE WILL BE TRANSFERRED TO A PRISON. This Court has recognized that in prison cases the “prisoner challenging a specified prison policy must have a ‘present interest affected by that policy’ in order to be heard.” S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2017 U.S. Dist. LEXIS 177668 (S.D. W.Va. 2017) at p. 4 (quoting Weinstein v. Bradford, 423 U.S. 147, 148 (1975)). The Fourth Circuit has confirmed and implemented this principle through a general rule that “the transfer of an inmate from a unit or location where he is subject to the challenged policy, practice, or condition, to a different unit or location where he is no longer subject to the challenged policy,
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practice, or condition moots his claims for injunctive and declaratory relief…”. Incumma v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007). See also Rendelman v. Rouse, 569 F.3d 182, 18687 (4th Cir. 2009)(discussing this general rule of mootness and holding that the transfer out of Maryland Division of Corrections custody to federal prison after conviction mooted Plaintiff’s claim for injunctive relief)(internal citations omitted); Incumma, supra (discussing cases supporting the general rule of mootness of declaratory and injunctive relief claims when an inmate is released and finding the inmate’s claims for declaratory and injunctive relief under the First Amendment moot); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)(holding a prisoner transfer mooted claims for declaratory and injunctive relief). This is because once removed from the location, the inmate “no longer has a legally cognizable interest in a judicial decision on the merits of his claim.” Incumma, 507 F.3d at 287.
In S.M.B. supra, at pp. 6-7, this Court considered whether an inmate’s claim for injunctive relief was mooted by his parole:
In this case, Plaintiff was paroled on March 28, 2017. While he was purportedly housed in a West Virginia correctional facility at the time he filed his Complaint, this is no longer the case. As Plaintiff is no longer housed in a WVRJCFA facility, he is no longer subject to the prison policy he challenges and, accordingly, has no “present interest affected by that policy.” As a result, the Court FINDS that Plaintiff’s claim for equitable relief against WVRJCFA is moot. In so holding, this Court relied upon the Court of Appeals decision in Incumaa, supra, and other similar decisions. This Court also concluded that none of the exceptions to the mootness doctrine were present in that case. Likewise, in Whitmore v. Western Reg’l Jail, 2019 U.S. Dist. LEXIS 133646 (S. D. W. Va. July 19, 2019), Magistrate Eifert reviewed a pro se inmate complaint regarding conditions at Western Regional Jail and found that the inmate’s transfer to a different correctional facility effectively mooted his claim for injunctive relief, that no exception applied
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and dismissed his claim for injunctive relief. Id. at pp. 11-13. This Court accepted and incorporated Magistrate Eifert’s findings and recommendation and dismissed the complaint with prejudice. Whitmore v. W. Reg’l Jail, 2019 U.S. Dist. LEXIS 132230 (S. D. W. Va. August 7, 2019).
This case, like S.M.B. and Whitmore, should be dismissed as moot because Plaintiff Hall is will not be an inmate of a Regional Jail governed by the policies challenged in the Second Amended Complaint as he is scheduled for a transfer to a prison. Further, based on Plaintiff Hall’s deposition testimony, he did not appear to have lasting consequences from any lapse in medication that is alleged. Exhibit 2 at 32-33. He is “doing better” at PHRJ. Id. at 40. Further, his transfer to a prison is imminent. As such, he does not have a present interest affected by any of the challenged policies, practices or conditions raised in the Second Amended Complaint. See e.g. Rosenberg v. Meese, 622 F. Supp. 1451, 1462 (S.D. N.Y. 1985)(internal citations omitted)(conditions of confinement claim mooted, in part, based on imminent transfer from the facility because past exposure to illegal conduct was insufficient to sustain a claim for injunctive relief without continuing, present effects). No exceptions to the mootness doctrine should apply and his claims in Counts I and II should be dismissed as moot.
II. PLAINTIFF JOSHUA HALL HAS NOT EXHAUSTED HIS ADMINISTRATIVEEMEDIES AS TO ANY CONDITION OF CONFINEMENT REFERENCED IN THE SECOND AMENDED COMPLAINT AND THEREFORE, IT SHOULD BE DISMISSED.
Plaintiff Hall failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995, ("PLRA"), 42 U.S.C. § 1997 et seq. prior to seeking judicial redress. All of his claims related to an alleged failure to provide medical and mental health treatment to inmates upon admission to a Regional Jail should be dismissed because prisoners are required to exhaust their administrative remedies prior to bringing an action in court and that requirement was not met for any of Plaintiff Hall’s claims. Likewise, any claim for a failure to accommodate a disability or
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claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12133 (“ADA”) is subject to the PLRA. Specifically, Defendants argue that Plaintiff failed to do the following: (1) provide evidence of exhaustion; (2) timely appeal the decisions; and (3) grieve or exhaust issues related to medical treatment prior to the filing of the Second Amended Complaint. Further, there are no issues of material fact regarding whether the grievance process is "available" to Plaintiff Hall.
The PLRA, 42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The term “prison conditions” as utilized by the PLRA is defined as “...conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings.” 18 U.S.C. § 3626(g)(2). In Porter v. Nussle, 534 U.S. 516, 531 (2002), the United States Supreme Court held that “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” The exhaustion requirement also applies regardless of the relief sought by the inmate through the administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001).
“Not only must a prisoner exhaust his administrative remedies, but he must also do so properly.” Wells v. Parkersburg Work Release Ctr., 2016 U.S. Dist. LEXIS 21026, 2016 WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 U.S. Dist. LEXIS 20459, 2016 WL 707457 (S.D. W. Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)).
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If a plaintiff fails to exhaust his or her administrative remedies under the PLRA, then the defendant is entitled to judgment as a matter of law. Legg v. Adkins, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017). Whether an administrative remedy has been exhausted for purposes of the PLRA “is a question of law to be determined by the judge.” Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, 2017 WL 4004579, at *3 (S.D. W. Va. 2017) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)).2 Disputed questions of fact regarding exhaustion of administrative remedies are resolved by the court. See id.
The West Virginia Division of Corrections and Rehabilitation (WVDCR) provides a grievance procedure in order to ensure direct access to an administrative remedy for inmates regarding all aspects of their confinement, including claims for medical care and conditions of confinement. The Inmate Handbook sets forth the formal process through which an inmate may seek “redress over any matter concerning prison life.” Exhibit 3, excerpts of Inmate Handbook. Under Grievance Procedures outlined in the Handbook, an inmate may file a grievance to an Administrator and, if unsatisfied by the response, the inmate may appeal to the Chief of Operations. Id. Again, if the inmate is not satisfied with the response received or does not receive a timely response, a third level of administrative oversight is included in the policy: an appeal to the Commissioner of WVDCR. Id.
While the PLRA requires administrative exhaustion prior to seeking judicial resolution of a complaint, an inmate is only required to exhaust those administrative remedies which are actually
2 Like the PLRA, the WVPLRA “require[s] inmates to exhaust their administrative remedies before they bring a lawsuit.” Legg v. Adkins, No. 2:16-cv-01371, 2017 U.S. Dist. LEXIS 25432, 2017 WL 722604, at *2 (S.D. W. Va. 2017) (citing 42 U.S.C. § 1997e(a); W. Va. Code § 25-1A-2a(i)). Under the WVPLRA, “[a]n inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted.” W. Va. Code § 25-1A-2(c). The WVPLRA defines an ordinary administrative remedy as “a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life. . . .which includes health care” Id. § 25-1A-2(a). This Court should conclude that Plaintiff Hall also failed to exhaust his grievances under the WVPLRA as well.
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available. 42 U.S.C. § 1997e(a)) (“The PLRA, however, requires exhaustion of only ‘such administrative remedies as are available.’”). "The availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is “on the books.” Ross v. Blake, 136 S. Ct. 1850 , 1859, 195 L. Ed. 2d 117 (2016)). Rather, a remedy is available only if it is “‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859.
The Supreme Court noted three specific instances in which a remedy would not be “available” for purpose of PLRA exhaustion. Id. “First, an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross 136 S. Ct. at 1859, (citing Booth, 532 U.S. at 736, 738). Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate it.” Id. “[W]hen a remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable.” Id. Finally, the third scenario in which the Supreme Court would find a remedy unavailable is “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, once the defendant has made a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff. Creel v. Hudson, 2017 U.S. Dist. LEXIS 147329, *11, 2017 WL 4004579 (S. D. W. Va. 2017).
Plaintiff Hall’s suit is subject to the requirement that all administrative remedies be exhausted prior to the suit being filed on December 19, 2019. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's
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decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003). In the present civil action, Plaintiff Hall alleges that he did not receive adequate medical or
mental health care while incarcerated at NCRJ. He does not appear to allege problems at PHRJ. Plaintiff’s suit is subject to the requirement that all administrative remedies be exhausted prior to filing suit; where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003).
In the present civil action, Mr. Hall has only two medical complaints regarding his time at NCRJ and they are as follows: 1) he claims that upon his initial admission, he was in a holding cell for 4 days without his Lopressor and that made him feel ill and that he felt “sweaty, clammy, flushed, dizzy, and nauseas.” Id. at ¶ 127; and 2) he claims that after about one month at the facility, his Lexapro was abruptly stopped for about 20 days. Id. at ¶ 129.
Plaintiff’s suit is subject to the requirement that all administrative remedies be exhausted prior to filing suit, here December 19, 2019. Where an inmate has not done so, the Court must dismiss the action "so that the prison can either resolve the issue on own, or create a more complete record for the district court to examine when reviewing the prison official's decision." Cline v. Fox, 282 F.Supp.2d 490, 495 (N.D.W.Va. 2003). Here, the Plaintiff failed to file a single grievance during his time at NCRJ and prior to the commencement of this action. This is not because the grievance system was “unavailable to Mr. Hall, because he admitted in his deposition that he had a “general idea” that he could do an inquiry or grievance using the kiosk system. Exhibit 2 at pp. 39-40. Furthermore, Plaintiff Hall accessed and viewed the Inmate Handbook at least once. See Exhibit 4, inmate kiosk view log. The inmate rulebook and the grievance process are readily
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available via electronic means on the Kiosk. See Exhibit 3; see, also, Exhibit 6, kiosk screenshot. Mr. Hall is aware of and able to utilize the grievance process, he just chose not to air his grievances related to the above claims, if he had any, in that way.
Looking at this evidence as a whole, the Court must conclude that there are no genuine issues of material facts regarding whether the grievance process is available to Plaintiff Hall and whether he properly exhausted the administrative remedies prior to bringing this issue before this Court. Plaintiff utilized the grievance kiosk during his incarceration to file inquiries, he just did not utilize the grievance process to properly exhaust his remedies related to his medical claims in this case. Instead, Plaintiff Hall chose to not follow the established, required procedure and to directly complain to the nurses on staff about any medical issues. See Exhibit 2 at p. 22. Therefore, the grievance process cannot be considered "unavailable" because he accessed the kiosk multiple times. Instead, Plaintiff simply failed to exhaust the administrative remedies available to him via the grievance procedure set forth in the Inmate Handbook. "[T]he PLRA[']s exhaustion requirement requires proper exhaustion" to include all steps that the agency has established and doing so consistent with the instructions provided. Woodford v. Ngo, 548 U.S. 81, 90 & 93 (2006). For these reasons, pursuant to the PLRA, Defendants are entitled to summary judgment on all claims by Plaintiff Hall due to his failure to exhaust his available administrative remedies under the PLRA.
III. THIS COURT SHOULD CONCLUDE AS A MATTER OF LAW THAT ALL OF THE DELIBERATE INDIFFERENCE CLAIMS FOR LACK OF MEDICAL AND MENTAL HEALTH TREATMENT UNDER COUNT I OF THE SECOND AMENDED COMPLAINT ARE WITHOUT MERIT.
Although an inmate is plainly entitled to receive adequate medical and mental health care while incarcerated, no inmate is entitled to receive, nor may he or she insist, that the State of West Virginia provide him with, the most sophisticated care that money can buy. United States v.
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DeCologero, 821 F.2d 39, 42 (1st Cir.1987). Rather the constitution only requires at Regional Jails, the facilities at issue under the Second Amended Complaint, that certain minimum standards of medical and mental health treatment are met, “not that they cater to the individual preference of each inmate.” Chase v. Quick, 596 F. Supp. 33, 35 (D.R.I. 1984). Deliberate indifference to a serious medical or mental health need of an inmate, including psychiatric care, can constitute unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976).
To adequately plead and prove an Eighth Amendment claim of deliberate indifference to the medical or mental health needs of an inmate, a plaintiff must satisfy a two-part test comprised of both objective and subjective components. First, Plaintiff must prove that the alleged deprivation of mental health treatment was “objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In order to satisfy the objective prong in a conditions of confinement claim, the prisoner must “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions,” or “demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions.” Importantly, “only extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim.” Shakka v. Smith, 71 F.3d 162 (4th Circ. 1995) (citing Hudson v. McMillian, 503 U.S. 1, 8-9 (1993)).
Second, Plaintiff Hall must demonstrate by competent, reasonable, and admissible evidence that the prison official had “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3. This subjective prong of the test requires Plaintiff to prove that Defendants had actual knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. Only when the official is “aware of facts from which the inference could be drawn that a substantial
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risk of serious harm exists, and he [draws] the inference[]” does the requisite degree of culpability exist to satisfy the second element of the inquiry. Id. Neither negligence nor medical malpractice in diagnosis or treatment of an inmate’s medical/mental health condition may give rise to an Eighth Amendment deliberate indifference claim.
Importantly, the Fourth Circuit reviews Eighth Amendment claims based on the totality of the circumstances. See, Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir. 1976); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 865 (4th Cir. 1975). This Court followed this same deliberate indifference standard related to the COVID-19 conditions at West Virginia Regional Jails and Prisons in its April 8, 2020, Order in this case denying the preliminary injunction, Doc. 183 at pp. 13-14, as the Court found that the inmates could not meet that standard.
This Court’s decision on COVID-19 is well-reasoned and it equally applies in this instance. Just as Defendants had a plan to deal with the coronavirus, Defendants have a contract to deal with medical and mental health needs in this case. As set forth in the Affidavit of Commissioner Jividen:
DCR contracts with PrimeCare Medical, Inc. to provide health care to inmates at nine of the Regional Jails, all except for Northern Regional Jail. Health care is provided to inmates at Northern through Wexford Health Sources, Inc. Wexford also provides health care for all of the inmates at the Correctional Centers. Pursuant to the contracts, PrimeCare and Wexford are required to provide the proper staffing and adequate health care for inmates at their respective facilities. Exhibit 5 at ¶ 4. The Court has further been provided with copies of the contracts with PrimeCare and Wexford for its review. A. Plaintiff Hall Has Failed to Establish that Defendants were Deliberately
Indifferent to a Substantial Risk of Serious Harm to Plaintiff. Plaintiff Hall cannot establish facts sufficient to proceed under § 1983 as to the objective
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prong of Farmer v. Brennan, supra. Under that prong, the Second Amended Complaint must allege that specific prison officials were deliberately indifferent to a risk of serious harm to the Plaintiff. Even assuming, arguendo, that Plaintiff Hall had properly pled the requisite "serious deprivation" for an Eighth Amendment claim, Plaintiff cannot establish sufficient facts to establish the requisite “deliberate indifference” specifically as to Defendants.3 Commissioner Jividen has set forth in her affidavit that she is an attorney, not a licensed healthcare provider and that Defendants have no role in the delivery of healthcare in the Regional Jails. Exhibit 5 ¶¶ 8-9.
Deliberate indifference requires a showing that the official was subjectively aware of a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (U.S. 1994). In order to possess this level of culpability, “the official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id. To be liable, the prison officials must actually know of and disregard the risk. Id. at 837.
The Fourth Circuit has characterized the deliberate indifference standard as an “exacting one. Lightsey, 775 F.3d at 178.” Jones v. Chapman, 2017 U.S. Dist. LEXIS 87907 at *87-91 (D. Md. June 7, 2017). Deliberate indifference “is a higher standard for culpability than mere negligence or even civil recklessness . . .” Lightsey, 775 F.3d at 178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319 ( 4th Cir. 1975); Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986).” Id. “Deliberate indifference is a very high standard-a showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir. 1999).
Magistrate Tinsley, writing for this district, recently addressed a very similar situation
3 The only parties with the requisite knowledge regarding the delivery of medical and mental health care that should have been sued here, but were not, are PrimeCare and Wexford. This Court may note that the Defendants tried to join them as third-party defendants earlier, but the Plaintiffs opposed this joinder, and this Court agreed. Doc. 110.
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regarding medical care for an inmate in a proposed findings and recommendations for disposition in Greene v. Ballard, 2020 U.S. Dist. LEXIS 59180 (S.D. W.V. 2020), aff’d. 2020 U.S. Dist. LEXIS 53023 (S.D. W.V. 2020). In examining the second factor under the Farmer decision, Magistrate Tinsley at pp. 26-27, stated:
Defendants Ballard, Frame, Clifford, Mitchell, and Snyder appear to be correctional or administrative staff, and not licensed healthcare providers. The Second Amended Complaint does not specifically allege that any of these defendants interfered with the treatment being provided to Greene for his medical needs. To the extent that the Second Amended Complaint alleges that Greene was denied the ability to attend follow-up outside doctor's appointments, he has failed to specifically identify which defendant or defendants made those decisions….Thus, the Second Amended Complaint falls woefully short of sufficiently pleading the subjective component necessary to state a plausible claim of deliberate indifference on this basis. This Court should consider the decision in Greene and the deliberate indifference standard and reach a similar conclusion.
In the instant matter, Plaintiff has made allegations against Defendants that they were deliberately indifferent to his medical needs based on the medical care he received in NCRJ when he alleges there were lapses in his medication. It is undisputed in this case that none of those specific care allegations relate to any conduct by Defendants, instead they appear to be grounded in policies. There is no indication that Defendants were either 1) aware of the specific allegations of Plaintiff (nor could there be because he failed to properly follow the administrative procedure in place) and 2) that they were aware or intended for the policies to be an excessive risk to any inmate. Plaintiff has not identified a specific policy or procedure that Defendants knew was inappropriate under the deliberate intent standard and therefore Plaintiff cannot show “a sufficiently culpable state of mind.” Wilson, 501 U.S. at 302-3 nor can he show that Defendants had an actual knowledge of and disregard for the “excessive risk to inmate health.” Farmer, 511 U.S. at 837. This Court should determine as a matter of law that Plaintiff has wholly failed to
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martial the necessary fact to establish deliberate indifference on the part of Defendants. As such,
all claims under Count I of the Second Amended Complaint must be dismissed as a matter of law.
B. Defendants have required that PrimeCare and Wexford Maintain NCCHC Accreditation and this Court Should Rule as a Matter of Law that Meeting NCCHC’s Standards are Substantial Evidence of Compliance with the Constitutional Standards of Deliberate Indifference.
As set forth in Commissioner Jividen’s affidavit: [as] a part of the contracts, each health care facility operated by PrimeCare and Wexford are required to be accredited by National Commission on Correctional Health Care ("NCCHC"), a nationally recognized organization with the mission of improving the quality of health care in prisons. Every couple of years the NCCHC does a thorough audit of each facility and they review compliance with 39 essential standards and 20 important standards. The NCCHC requires 100% compliance with the essential standards for a facility to receive its accreditation. If you are not in full compliance with the essential standards, a contingent approval is provided and the facility is given a period of time to meet all of the essential standards.
Exhibit 5 ¶ 5. In ¶¶ 6-7 of her affidavit, she further attests that all nine of the PrimeCare Regional
Jail health care facilities have met the NCCHC accreditation standards and Wexford has received
contingent approval for its health care facility at Northern Regional Jail.
The District Court in Balla v. Idaho State Board of Corrections, 2020 U.S. Dist. LEXIS
95915 (D. Idaho 2020) recently examined the NCCHC standards in an Eighth Amendment
deliberate indifference case related to medical and mental health for inmates that has been ongoing
for almost 40 years. In that case, the district court discussed at length the NCCHC standards and
considered them as evidence of compliance with the Eighth Amendment deliberate indifference
standard. The district court made clear that the NCCHC standards, as “best practices” are not the
“constitutional floor” but something to be considered along with the fact in the case. Id. at p. 29.
Based upon the foregoing and the evidence in the case, the district court dismissed the case.
Likewise, in this case, this Court should consider the NCCHC standards for accreditation and the
evidence in the case, and conclude as a matter of law that all claims under Count I of the Second
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Amended Complaint must be dismissed against Commissioner Jividen. IV. ALL CLAIMS UNDER COUNT II OF THE SECOND AMENDED COMPLAINT RELATED TO THE AMERICANS WITH DISABILITY ACT SHOULD BE DISMISSED AS A MATTER OF LAW. Plaintiff’s claims in Count II of the Second Amended Complaint fall under Title II of the
Americans with Disabilities Act (“ADA”) likewise fail. In order to present a claim under the ADA, Plaintiff must establish: “(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program or activity; and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against on the basis of their disability.” Gordon v. Tygart Valley Reg’l Jail, 2013 U.S. Dist. LEXIS 28444 (N.D. W. Va. 2013)(citations omitted).
First, out of an abundance of caution, because there is some vagueness as to the basis of the Plaintiff’s ADA allegations based on the discovery to date, to the extent that Count II attempts to assert a claim against either Defendant under Title II of the ADA based on allegations that do not implicate constitutional rights, those claims are barred by sovereign immunity. See Sims v. Marano, 2020 U.S. Dist. LEXIS 20384 at 14-15 (W.D. Va. 2020)(mem. op.)(citing United States v. Georgia, 546 U.S. 151 (2006) and Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007)). To the extent that Count II attempts to assert a Title II claim under the ADA against Defendant Jividen in her official capacity, those claims are limited to prospective injunctive relief. Id. at 17.
Second, with regard to Title II clams under the ADA that are based on alleged constitutional violations, for the purposes of this Motion only, Defendants will assume Plaintiffs can meet the threshold to be considered disabled. However, even assuming, arguendo, that Plaintiff is disabled under this standard “courts routinely dismiss ADA suits by disabled inmates that allege inadequate medical treatment, but do not allege that the inmate was treated differently because of his/ her
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disability.” Gordon, supra, at 10. The Court found “it is not enough, in asserting a Title II discrimination claim under the ADA, for the Plaintiff to show that he received inadequate care in light of his disability. He must demonstrate that he was excluded from participation in a program or activity, or otherwise discriminated against, on the basis of his disability.” Id. at 12. In this case, Plaintiff Hall cannot demonstrate such discrimination or that a request for accommodation was denied and appealed through the required administrative process.
In the Second Amended Complaint, Plaintiff Hall claims that all Plaintiffs did not receive necessary accommodations for disabilities to enable them to participate in jail life in the same manner as non-disabled inmates. Doc. 67 at ¶ 185. In addition, he has alleged that Plaintiffs were discriminated against by a failure to provide reasonable accommodations. Id. at ¶ 186. The Amended Complaint further appears to allege that the Defendants’ policies do not provide for appropriate medical treatment, including mental health services, “immediately upon entry to the State jails” and that this is a violation of the ADA and is discrimination against the Plaintiffs. Id. at ¶ ¶ 257 and 258. See also Id. at ¶ 255.
To the extent that Plaintiff attempts to argue that his ADA claims are based on the same facts as the allegations related to the claim of deliberate indifference discussed supra, Plaintiff’s argument fails. Plaintiff’ Hall’s Second Amended Complaint does not allege that he is receiving different medical care because of his disability. Accordingly, any claim related to medical care appears to be that the medical care received was inadequate. At set forth above, the Second Amended Complaint allegations related to medical care fail to meet the deliberate indifference standard and must be dismissed. Regardless, it is well settled that a claim of inadequate medical care is insufficient to establish a claim under the ADA. See Gordon, supra. See also Mondowney v. Balt. Cty. Det. Ctr., 2019 U.S. Dist. LEXIS 119566, p. 58-59 (D. Md. 2019)(discussing cases
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finding that a lack of medical treatment does not violate rights under the ADA); Spencer v. Easter, 109 F. Appx. 571, 773 (4th Cir. 2004)(failure to provide timely medication refills not an ADA violation); Bryant v. Madigan, 84 F. 3d. 246, 249 (7th Cir. 1996) (ADA not violated by a simple failure to attend to the medical needs of disabled prisoners).
Plaintiff Hall has failed to articulate how he has been treated differently because of his alleged disabilities with regard to any jail program or service. He has not identified any other program or service that that he sought to participate in and was denied entry based on his disability. Instead, the allegations in the Second Amended Complaint are generally stated as a lack of accommodation and a general reference to policies. However, when asked in discovery to identify any evidence of an ADA violation, Plaintiff provided no specific information, he simply objected to the timing, calling the interrogatory an “improper block buster request, and calls for a legal conclusion that Plaintiff is not qualified to answer,” and, notwithstanding that objection and without waiving the same, he identified his medical conditions but no specific policy, program, accommodation or other specific alleged ADA violation. See Exhibit 7, Plaintiff’s Response to Interrogatory No. 21. In his deposition, Plaintiff Hall stated that when he didn’t have his anxiety medication, he got closed off, angry, irritable and frustrated. Exhibit 2 at 32-33. When he didn’t have his Lopressor, his heart rate would go up and he would sweat. Id. at 31. He alleged that because he didn’t get the medications he needed to function he was treated differently. Id. at 33. Finally, Plaintiff also alleged that he did not participate in recreation or leave his cell as much when he did not have his medication and NCRJ. Id. at 45. As discussed above, these are not ADA claims. In addition, they appear to be resolved and so are a prior harm, not an ongoing harm.
To the extent that the allegations at issue are related to an accommodation for a disability, even general accommodations, they are subject to the exhaustion requirements of the PLRA. See
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e.g. O’Guinn v. Lovelock Corr. Ctr. 502 F.3d 1056, 1061-62 (9th Cir. 2007)(discussing plain language of PLRA requiring exhaustion of administrative remedies before bringing ADA and Rehabilitation Act claims); Corpening v. Hargrave, 2015 U.S. Dist. 80447, 10-11 (W. D. N.C. 2015) (same). As discussed supra, Plaintiff failed to exhaust the available administrative remedies under the PLRA and so his claims must be dismissed as a matter of law.
Finally, even assuming, arguendo there were a failure to accommodate the Plaintiff or a violation of the ADA, which is denied, that past failure without continuing, present adverse effects for this Plaintiff and does not constitute a basis for “a present case or controversy regarding injunctive relief.” Sims v. Marano, 2020 U.S. Dist. LEXIS 20384, 17-18 (W. D. Va. 2020)(Mem. Op.)(citing O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) in evaluating an inmate’s pro se claims that his rights were violated under the ADA and noting that, inter alia, a claim related to the denial of a prosthetic leg under the ADA – which had been previously dismissed for failure to state a claim – could not be the basis for injunctive relief when he received a prosthetic leg after the lawsuit was filed because it was a prior harm). As such because Plaintiff Hall is no longer experiencing issues, has transferred from NCRJ to PHRJ where he does not appear to have complaints, and because his transfer to a prison where he will not be subject to any policy or lack of accommodation at a West Virginia Regional Jail is imminent, his claims cannot be the basis for the prospective injunctive relief sought and should be dismissed.
V. COUNT I OF THE SECOND AMENDED COMPLAINT MUST BE DISMISSED AGAINST WVDCR SINCE IT IS NOT A PERSON.
WVDCR is entitled to dismissal under Count I of the Second Amended Complaint as a matter of law because it is not a “person” subject to suit in this court under 42 U.S.C. § 1983. That section provides a remedy to parties who are deprived of protected civil rights by “persons” acting under color of any state “law, statute, ordinance, regulation, custom, or usage.” The Supreme
19

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Court in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) held that a state nor its agencies are “persons” under § 1983. The Fourth Circuit has confirmed that it is “well settled” that a state or a state agency are not “persons” as required under 42 U.S.C. § 1983. See e.g Kelly v. State, 2007 U.S. Dist. LEXIS 95954 (D. Md. 2007) aff’d 267 F. App'x 209, 210, 2008 U.S. App. 1226 (4th Cir. 2008) (recognizing that it has been “well settled” that the state cannot be sued under 42 U.S.C. § 1983 and noting that “[a] cause of action under § 1983 requires the deprivation of a civil right by a “person” acting under color of state law).
Court I against WVDCR clearly falls within the category of attempted § 1983 actions that cannot be brought under § 1983 because WVDCR is not a person. In similar cases, the State and its agencies have been found not to be “persons” under § 1983 and have been dismissed from suit. See Cochran v. W. Va. Reg'l Jail & Corr. Facility Auth., 2014 U.S. Dist. LEXIS 89893, at *8 (S.D. W.Va. 2014)(holding W.Va. Regional Jail and Correctional Facility Authority, the predecessor to WVDCR, is a state agency and that no § 1983 action could be brought against it) and Black v. West Virginia, 2019 U.S. Dist. LEXIS 172020, at *10-12 (S.D. W.Va. 2019)(holding the State was entitled to dismissal because it is not a “person” subject to liability or suit under § 1983). This Court as a matter of law should dismiss WVDCR from Count I of the Second Amended Complaint.
CONCLUSION WHEREFORE, based upon the foregoing, as discussed in the Motion and Memorandum of Law in Support, Defendants respectfully requests that this Court order dismissing as moot the Plaintiff Joshua Hall’s claims for declaratory and injunctive in this case, that the claims under Count I and II of the Complaint should be dismissed for the additional grounds set forth herein, and that it order any other further relief that the Court deems just and proper.
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Respectfully submitted on behalf of Defendants:
LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III__________ Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 wjarceneaux@lgcr.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
21

 
 Case 3:18-cv-01526 Document 292 Filed 07/29/20 Page 1 of 3 PageID #: 7827

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MOTION TO STAY MAGISTRATE’S ORDER

NOW COME the Defendants Betsy Jividen, Commissioner of the West Virginia Division

of Corrections and Rehabilitation, and West Virginia Division of Corrections and Rehabilitation

(“Defendants”), by counsel, and pursuant to Local Rules 7.1(a)(2) and 72.2 of Civil Procedure,

respectfully request that the Order entered on July 27, 2020 by Magistrate Judge Aboulhosn, Doc.

286 (“Discovery Order”) be stayed pending Defendants’ filing of objections and this Court’s

consideration of the same.

Under the Discovery Order, Defendants are to respond to Plaintiffs’ outstanding discovery requests “no later than August 3, 2020.” Discovery Order, Doc. 286 at p. 10.1 However, as set

forth in the accompanying Memorandum of Law, this production would occur before Defendants’

objections to the Discovery Order are due under Federal Rule of Civil Procedure 72(a). This Court

would not have the opportunity to evaluate and enter a decision on Defendants’ objections to the

Discovery Order, effectively rendering moot the relief Defendants intend to seek. Further, issuing

a brief stay for consideration of these objections does not substantially prejudice the Plaintiffs.

1 The Discovery Order begins at page 2, and the ECF Document page numbers begin at page 1. References herein are to the ECF Document page numbers at the top of the Discovery Order.

Case 3:18-cv-01526 Document 292 Filed 07/29/20 Page 2 of 3 PageID #: 7828
WHEREFORE, based upon the foregoing discussion, Defendants respectfully request that this Court stay the Discovery Order issued on July 27, 2020, Doc. 286, in its entirety, until Defendants timely file their objections and the Court considers the objections regarding the Discovery Order and for such further relief as this Courts deems just and proper.
Respectfully submitted on behalf of Defendants by:
LEWIS GLASSER PLLC /s/ James C. Stebbins Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000; FAX: (304) 343-7999 jstebbins@lewisglasser.com
PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
2

Case 3:18-cv-01526 Document 292 Filed 07/29/20 Page 3 of 3 PageID #: 7829

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.

Plaintiffs,

v. BETSY JIVIDEN, et al.,

Civil Action No. 3:18-cv-01526 (Chambers, J.)

Defendants.

CERTIFICATE OF SERVICE I, James C. Stebbins, co-counsel for all Defendants, do hereby certify that on this 29th day

of July, 2020, I electronically served a copy of the foregoing “DEFENDANTS’ MOTION TO

STAY MAGISTRATE’S ORDER” via the CM/ECF system that will send notification to the

following counsel of record:

Lydia C. Milnes, Esq. Jennifer S. Wagner, Esq. Mountain State Justice
Counsel for Plaintiffs

/s/ James C. Stebbins James C. Stebbins, WV State Bar #6674

LEWIS GLASSER PLLC Post Office Box 1746 Charleston, WV 25326 (304) 345-2000 FAX: (304) 343-7999 jstebbins@lewisglasser.com

Case 3:18-cv-01526 Document 293 Filed 07/29/20 Page 1 of 6 PageID #: 7830

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., et al.,

Plaintiffs,

v.

Civil Action No. 3:18-cv-01526

(Chambers, J.)

BETSY JIVIDEN, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO STAY MAGISTRATE’S ORDER

NOW COME Betsy Jividen, Commissioner of the West Virginia Division of Corrections

and Rehabilitation, and West Virginia Division of Corrections and Rehabilitation (“DCR”),

collectively “Defendants,” by counsel, and in support of their Motion to Stay Magistrate’s Order

(“Motion to Stay”), aver that Magistrate Judge Aboulhosn’s July 27, 2020 Order, Doc. 286

(“Discovery Order”) should be stayed in its entirety to provide them with the time allowed under

Federal Rule of Civil Procedure 72(a) to file objections to that order.

Summary of Background Facts

Magistrate Judge Aboulhosn’s Discovery Order grants Plaintiffs’ Third Motion to Compel

Discovery (Doc. 238) (“Plaintiffs’ Third Motion to Compel”) with regard to outstanding discovery

disputes. While the parties were able to resolve a majority of issues related to the discovery dispute

outlined in that motion, generally three types of issues remained: (1) Wexford Health Sources,

Inc. (“Wexford”) documents related to patient health records, audits and reviews; (2) personnel

files and documents related to Debbie Hissom, an employee of DCR, and contractor Wexford’s

Case 3:18-cv-01526 Document 293 Filed 07/29/20 Page 2 of 6 PageID #: 7831
employees; and (3) incident reports and use of force reports for named Plaintiffs. Discovery Order at pp. 1-2.1
Defendants contended that Plaintiffs’ motion was untimely; that disciplinary files were irrelevant; that it did not have custody or control over responsive documentation from Wexford and that the information should be obtained from Wexford, not DCR; that some of the information sought was confidential; and that some of the requested information was irrelevant. See Defendant’s Response in Opposition to Plaintiffs’ Third Motion to Compel (Doc. 251); see also Doc. 286 at 4-5 (summarizing Defendants’ positions). The Discovery Order found that the remaining discovery in dispute should be provided by August 3, 2020 and provided a briefing schedule for a request for attorney fees. Doc. 286 at 10-11.
Legal Standard Under Local Rule of Civil Procedure 72.2, “[w]hen an objection to a magistrate judge’s ruling on a non-dispositive pretrial motion is filed pursuant to FR Civ P 72(a), the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or by a district judge.” In Meade v. Parsley, 2011 U.S. Dist. LEXIS 41947, *3-4 (S.D. W.Va. 2011), the Court considered the following standard in evaluating a motion to stay a proceeding:
A district court has broad discretion to stay an action as part of its inherent authority to manage its docket. Wince v. Easterbrooke Cell. Corp., 681 F. Supp. 2d 688, 692 (N.D. W. Va. 2010) (citing Landis v. North American Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 81 L. Ed. 153 (1936)). Nevertheless, the court’s discretion has limits. “[P]roper use of this authority calls for the exercise of judgment which must weigh competing interests and maintain an even balance. The party seeking a stay must justify it by clear and convincing circumstances outweighing potential harm to the party against whom it is operative.” Williford v. Armstrong World Indus.,
1 The Discovery Order begins at page 2, and the ECF Document page numbers begin at page 1. References herein are to the ECF Document page numbers at the top of the Discovery Order.
2

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Inc., 715 F.2d 124, 127 (4th Cir. 1983) (internal quotations and citations omitted). In this case, clear and convincing circumstances, that is the ability to meaningfully object under Federal Rule of Civil Procedure 72(a), exist that outweigh the harm, if any, to Plaintiffs in obtaining the documents sought.
Argument Federal Rule of Civil Procedure 72(a) provides:
When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. (emphasis added). The Discovery Order acknowledges that the Defendants may file objections within fourteen (14) days of entry of the Order. See Doc. 286 at p. 11. As noted above, pursuant to Local Rule of Civil Procedure 72.2, a ruling on a non-dispositive pretrial motion remains in effect unless stayed by a magistrate judge or by a district judge. The Discovery Order was entered on July 27, 2020, giving Defendants until August 10, 2020 to file objections to the Discovery Order for this Court to consider under Federal Rule of Civil Procedure 72(a). However, the Discovery Order further provides that Defendants must provide responses by or before August 3, 2020. Doc. 286 at p. 10. This would effectively render Defendants’ ability to object and its intended objections moot. The parties have exchanged voluminous information and are currently briefing class certification and individual plaintiff dispositive motions. All named Plaintiffs who currently seek to be and are offered as class representatives, Debbie Hissom, and a Rule 30(b)(7) representative
3

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of Wexford have been deposed. Initial briefs have already been filed. No depositions are currently scheduled.
Although Plaintiffs have alleged that the information sought is relevant to their class certification motion, Defendants aver it is not. The Fourth Circuit has held that, in addition to falling within one of the three categories of Rule 23(b), a prospective class under Rule 23(a) of the Federal Rules of Civil Procedure “must comply with four prerequisites: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.” EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014)(internal citations omitted). While Defendants certainly do intend to argue that Plaintiffs cannot establish a class and do not believe they can do so, Defendants do not believe the documents at issue under the Discovery Order are critical to the initial class certification analysis especially given the voluminous discovery already produced.
Wexford has provided documents pursuant to a subpoena duces tecum, and a Rule 30(b)(7) deposition has been taken. See Doc. 202. During that deposition, Plaintiffs had ample opportunity to inquire into class certification issues. Wexford provides healthcare at one (1) regional jail facility out of ten (10) in West Virginia. Given that only one facility out of 10 at issue utilizes Wexford and the amount and type of information that has already been provided, the information sought related to Wexford, including the information sought by Plaintiffs concerning an individual employee, adds little, if anything, to the class certification arguments presented by Plaintiffs in their motion and that must be balanced against the potential harm to Defendants.
With regard to the use of force and incident reports of named Plaintiffs, Defendants aver these documents, even if relevant and otherwise required to be produced, which Defendants dispute, are not required or relevant for class certification briefing. The requested information regarding Ms. Hissom’s personnel file is likewise inapposite to any class certification briefing;
4

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however, her privacy interest in the same is significant and should be considered. Ms. Hissom has been deposed for class purposes, and Plaintiffs had ample opportunity to question her at that time on matters relevant to class certification. (Doc. 75).
Finally, Defendants’ Response to class certification is due August 7, 2020, and Plaintiffs’ Reply is not due until August 14, 2020. Therefore, even a limited stay of the Discovery Order would allow this Court to consider the objections on an expedited basis without materially delaying these proceedings. Little to no prejudice will occur from the granting of this Motion to Stay, and the prejudice to Defendants in losing the ability to object to the Discovery Order under Federal Rule of Civil Procedure 72(a) far outweighs any prejudice to Plaintiffs.
Conclusion For the Defendants’ ability to object to the Discovery Order to have any meaning, the August 3, 2020 deadline to respond to the discovery requests at issue should be stayed, along with the briefing on any attorney fees. If Defendants produce the disputed discovery on or before August 3, 2020, its objections to the Discovery Order will be rendered moot before this Court can review the same. As set forth above, issuing a brief stay for consideration of these objections will not substantially prejudice the Plaintiffs. For these reasons, Defendants respectfully request that this Court stay the Discovery Order issued on July 27, 2020, Doc. 286, in its entirety, until Defendants timely file their objections and the Court considers the objections regarding the Discovery Order and such further relief as this Courts deems just and proper.
Respectfully submitted on behalf of Defendants by:
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LEWIS GLASSER PLLC /s/ James C. Stebbins Webster J. Arceneaux, III, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 Valerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 (304) 345-2000; FAX: (304) 343-7999 jstebbins@lewisglasser.com PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino (WVSB #11060) Assistant Attorney General 1900 Kanawha Blvd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov
6

 
 Case 3:18-cv-01526 Document 294 Filed 07/30/20 Page 1 of 1 PageID #: 7836

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., ET AL., Plaintiffs,
vs. BETSEY JIVIDEN, ET AL.,
Defendants.

Civil Action No. 3:18-cv-01526

ORDER Pending before the Court is Defendants’ Motion to Stay Magistrate’s Order (ECF No. 292) wherein Defendants request a stay pending their filing of objections to the undersigned’s order entered on July 27, 2020 (ECF No. 286) and the District Court’s consideration of same. Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, Defendants would be entitled to file any objections to the order within 14 days of entry of same. Accordingly, Defendants’ Motion (ECF No. 292) is GRANTED, and the July 27, 2020 order (ECF No. 286) is STAYED pending Defendants’ filing of any objections for the District Court’s consideration through August 10, 2020. In the event Defendants file objections, the stay will continue pending a decision by the District Court. The Clerk is requested to distribute a copy of this Order to all counsel of record. ENTER: July 30, 2020.

 
 Case 3:18-cv-01526 Document 357 Filed 12/21/20 Page 1 of 17 PageID #: 10364

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

CIVIL ACTION NO. 3:18-1526

(Consolidated with 3:18-1533 and 3:18-1436)

BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and THE WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION

Defendants.

MEMORANDUM OPINION AND ORDER

Currently pending before the Court is Plaintiffs’ Motion for Class Certification. ECF No.

264. For the reasons that follow, the Court GRANTS in part Plaintiffs’ motion.

I. BACKGROUND

Nearly 50,000 individuals pass through regional jails in the state of West Virginia each

year. Douglas Aff. 2–3, ECF No. 307-3.1 When those individuals enter the regional jails, they have

no choice but to rely on the correctional system to have their basic needs met. See Estelle v.

Gamble, 429 U.S. 97, 103 (1976) (“An inmate must rely on prison authorities to treat his medical

1 Mr. Brad Douglas, the Chief of Staff for the West Virginia Division of Corrections and Rehabilitation, testified that the regional jails completed 48,753 inmate intakes in 2018 and 47,051 in 2019.

Case 3:18-cv-01526 Document 357 Filed 12/21/20 Page 2 of 17 PageID #: 10365
needs; if the authorities fail to do so, those needs will not be met.”); Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (holding the constitutional duties of corrections officials “include maintaining humane conditions of confinement, including the provision of adequate medical care and … ‘reasonable measures to guarantee the safety of the inmates.’”). The instant class action alleges that pretrial detainees and inmates in West Virginia’s regional jails have been provided inadequate mental and medical health care. Pls.’ Mem. Supp. 1, ECF No. 279.
The regional jails are operated by the West Virginia Division of Corrections (“WVDCR”) and Rehabilitation under the direction of Commissioner Betsy Jividen. Second Am. Compl. ¶¶ 7– 8, ECF No. 67; see WV Code § 15A-3-2 (“The executive and administrative head of the Division of Correction and Rehabilitation shall be the Commissioner appointed pursuant to §15A-3-3 of this code.”). Plaintiffs claim that Commissioner Jividen and the WVDCR maintain uniform policies and procedures across all of the regional jails that violate the United States Constitution and federal anti-discrimination laws. Mot. Cert. Class 1–2, 4–7, ECF No. 264; Second Am. Compl. ¶¶ 242–58.
Specifically, Plaintiffs assert that Defendant has acted with deliberate indifference under the Eighth and Fourteenth Amendments of the United States Constitution “by failing to establish, monitor, and/or enforce policy directives and operational procedures to ensure inmates admitted to jails in West Virginia receive prompt treatment for their medical and mental health conditions.” Second Am. Compl. ¶ 247. Plaintiffs also allege that Defendant has committed unlawful acts of discrimination by failing to make reasonable accommodations for detainees and inmates with disabilities, depriving them of jails services, programs, and activities in violation of the Americans with Disabilities Act. Id. at ¶ 255.2
2 In response to motions for summary judgment, Plaintiffs clarified that their ADA claims are based on failure to accommodate under the Act. See Pls.’ Resp. 21, ECF No. 302 (Plaintiffs “assert that Defendant, through DCR’s
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In their Motion for Class Certification, Plaintiffs propose the following definition for their Jail Class:
All Persons who are, or who will be, admitted to a jail in West Virginia. Mot. Class Cert. 1. They also seek to certify a subclass of plaintiffs within WVDCR custody who have disabilities. The proposed subclass definition reads as follows:
All persons who are, or will be, admitted to a jail in West Virginia who meet the definition of a “qualified individual with a disability” under the Americans with Disabilities Act. Id. Contemporaneously with this Order, the Court is issuing a separate order on multiple motions for summary judgment brought by the Defendant in this case. Because that order grants summary judgment in favor of Defendant Jividen on the ADA claims of all but one Plaintiff, Donna Wells-Wright, the Court will require additional briefing from the parties as to whether class certification is appropriate for the “Disability Subclass.” As such, the following analysis will be limited to the Plaintiffs’ proposed “Jail Class.”
II. LEGAL STANDARD Rule 23(a) of the Federal Rules of Civil Procedure establishes four class certification requirements: (1) a class so numerous that joinder of all members is impracticable; (2) questions of law or fact common to the class; (3) a representative party whose claims and defenses are typical of the class’s claims and defenses; and (4) a representative party that will fairly and adequately protect the class’s interests. Fed. R. Civ. P. 23(a); Monroe v. City of Charlottesville, 579 F.3d 380, 384 (4th Cir. 2009). In addition to these four requirements, a plaintiff must also demonstrate that
complete lack of policies, procedures, and oversight, has failed to provide them with reasonable accommodations for their disabilities, and as a result, that Plaintiffs have been excluded from participation in, and denied the benefits of, the services, programs, or activities, of jail life.”).
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the proposed class action fits into one of three forms permitted by Rule 23(b). See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 163 (1974).
“Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The plaintiffs seeking certification “must affirmatively demonstrate [their] compliance with the Rule—that is, [they] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id.; EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (noting that the plaintiff bears the burden of proving it has complied with Rule 23). Nevertheless, “the district court has an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the prerequisites have been satisfied.” EQT, 764 F.3d at 358 (quoting Wal-Mart, 564 U.S. at 350–51). This “rigorous analysis” may “entail some overlap with the merits of the plaintiff’s underlying claim,” Wal-Mart, 564 U.S. at 351, but courts have been cautioned not to “engage in free-ranging merits inquiries at the certification stage,” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
III. DISCUSSION As a threshold matter, this Circuit requires that in addition to the explicit requirements of Rule 23, proposed classes must be “readily identifiable.” EQT, 764 F.3d 347 at 358 (quoting Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972)). This means that “[a] class cannot be certified unless a court can readily identify the class members in reference to objective criteria.” Id. The goal of this requirement is to avoid “mini-trials” to determine who is or is not a class member. Id. (quoting Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012)). Defendant submits that the class members in this case are not “readily identifiable,” because “Plaintiffs cannot establish that every inmate will need or use the health care system and
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a class cannot contain members with no injury.” Def.’s Resp. 28, ECF No. 307. This argument fails for two reasons.
First, as addressed in the Court’s order on Defendant’s motions for summary judgment, Plaintiffs are asserting that the constitutional violations in this case are the Defendant and WVDCR’s system-wide policies and procedures. As Plaintiffs have consistently argued, the risk of harm that stems from being subject to these policies is the injury they seek to have remedied. See Pls.’ Reply 5, ECF No. 323; Dunn v. Dunn, 219 F. Supp. 3d 1100, 1123 (M.D. Ala. 2016); Parsons v. Ryan, 289 F.R.D. 513, 521 (D. Ariz. 2013), aff'd, 754 F.3d 657 (9th Cir. 2014) (holding that a plaintiff seeking injunctive relief “need not wait until he suffers an actual injury because the constitutional injury is the exposure to the risk of harm.”) (emphasis in original). Therefore, Plaintiffs need not show that every class member will use the healthcare system at the regional jail. Instead, they simply need to show that the entire class is subject to the same policies, and they have.
Defendant Jividen, as Commissioner of the WVDCR, is required by West Virginia law to “[e]stablish rules, policies, and regulations in writing governing all subdivisions and institutions within the division,” and to “[s]upervise the treatment, custody, and discipline of all inmates and residents . . ..” W. Va. Code § 15A-3-4; see Hissom Dep. 18, ECF No. 264-4 (noting that the Commissioner “would have to sign off on any changes” to policies within the regional jails).
Plaintiffs have provided persuasive evidence that Defendant has attempted to transfer all responsibility for medical and mental health treatment to two for-profit medical contractors, PrimeCare and Wexford, and then engaged in minimal oversight. See, e.g., Hissom Dep. 52, 53, 54, 59, 105, 120, 130, ECF No. 264-4 (testifying that WVDCR does not conduct site inspections, review contractors’ manuals and protocol, receive utilization review for regional jails, ask for
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statistical summaries, review receiving screenings, review licensure of individual contracted staff, or ask for reports regarding timely completion of health assessments).
Additionally, Plaintiffs have produced evidence that training on medical policies within the regional jails is done by one person and that the medical intake process is controlled by the contracts WVDCR has with its vendors. Id. at 19, 23, 24. Defendant herself notes that WVDCR’s contracts with both of its health care vendors are “very similar” and that both PrimeCare and Wexford are required to meet the same requirements to ensure “proper medical and mental health care is being provided to all regional jail inmates.” Def.’s Resp. 4–6. Accordingly, given the Defendant’s statutory duty, combined with the evidence of system-wide administration of health care policies and procedures, the Court is satisfied the entire plaintiff class is subject to the policies it challenges and that no members are without a claimed injury.
Second, the Defendant’s objection misunderstands the “identifiable” requirement. To satisfy this requirement, the Plaintiffs need only show that the Court and the parties could determine who is or is not a class member. Here, the Plaintiffs’ class is well defined. It would not take a “mini-trial” to determine whether an individual is part of the class. Moreover, this class is similar to jail classes that have be deemed certifiable by other courts. See, e.g., Parsons v. Ryan, 754 F.3d 657, 672 (9th Cir. 2014) (“[A]ll prisoners who are now, or will in the future be, subjected to the medical, mental health, and dental care policies and practices of the ADC.”); Hernandez v. Cty. of Monterey, 305 F.R.D. 132, 149 (N.D. Cali. 2015) (“[A]ll [inmates] who are now or will be in the future in the Jail.”); Clarke v. Lane, 267 F.R.D. 180, 194 (E.D. Pa. 2010) (“All current and future residents of Coleman Hall to pursue claims associated with the inadequate access to and provision of medical and mental healthcare.”). Accordingly, the Court finds that the Plaintiff class is readily identifiable and now turns to the requirements of Rule 23.
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A. Numerosity The numerosity requirement of Rule 23 requires that the proposed class be “so numerous
that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Deciding numerosity is discretionary; there is no “mechanical test” or minimum class member requirement. Holsey v. Armour & Co., 743 F.2d 199, 217 (4th Cir. 1984). Yet, courts generally find numerosity exists when a class has 40 or more members. William B. Rubenstein, Newberg on Class Actions § 3:12 (5th ed. 2020); Hernandez, 305 F.R.D. at 153 (finding that numerosity was satisfied where the class contained over 40 members).
Defendant argues that Plaintiffs have failed to meet the numerosity requirement because the class definition is “overly broad, speculative and inaccurate.” Def.’s Resp. 29. Despite this assertion, in the same memoranda, Defendant noted that the regional jails processed 48,753 inmates in 2018 and 47,051 in 2019. Id. at 3. In footnote 3 of her Response, Defendant provided an example of what the class would look like on a given day, noting that on April 6, 2020 the regional jails housed 4,381 inmates. Id. at 4 n.3. Each of these inmates is subject to the policies and procedures of the WVDCR.
Because of the overwhelmingly large and continuously changing size of the class, the Court finds that joinder is impracticable. This finding is consistent with other courts who have granted certification of jail classes. See Postawko v. Missouri Dep’t of Corr., 910 F.3d 1030, 1037–38 (8th Cir. 2018) (affirming district court’s finding that jail class was likely to include at least 2,000 people and remarking that “[a] class of that size would make ‘joiner of all members . . . impracticable.’”); Scott v. Clarke, 61 F. Supp. 3d 569, 584 (W.D. Va. 2014) (finding class of approximately 1,200 prisoners satisfied numerosity requirement); Clarke, 267 F.R.D. at 195 (finding numerosity was satisfied when the jail facility housed 150–300 inmates at any time).
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B. Commonality Commonality under Rule 23 requires that there be “questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). “[C]ommonality requires a showing that there is ‘some glue’ holding the claims together.” Dunn v. Dunn, 318 F.R.D. 652, 662–63 (M.D. Ala. 2016). Although “[a] single common question will suffice, . . . it must be of such a nature that its determination ‘will resolve an issue that is central to the validity of each one of the claims in one stroke.” EQT, 764 F.3d at 360 (quoting Wal-Mart, 564 U.S. at 350).
Plaintiffs claim that “[c]ommonality is met because Plaintiffs challenge the legality of Defendant[’s] system-wide policies and practices, which raise common questions capable of common answer through the system-wide injunctive relief Plaintiffs seek.” Pls.’ Mem. Supp. 3, 29 (citing Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)).
Defendant, on the other hand, raises multiple arguments she claims require a finding that commonality is not satisfied. First, Defendant argues that “Plaintiffs cannot identify or propose a single common answer that would address the myriad of alleged deficiencies” they raise. Def.’s Resp. 30. To this end, Defendant proclaims that the Plaintiffs have not “suffered the same injury.” Id. As addressed above, the claimed injury is Plaintiffs’ exposure to WVDCR’s health care policies. Much as they need not show that every class member will use the healthcare system at the regional jails, they also do not have to show that the harm they suffer on an individual level is identical. Parsons, 289 F.R.D. at 521.
Next, Defendant argues that the proposed class is overbroad. Relying on Sabata v. Nebraska Department of Correctional Services, Defendant submits that the Plaintiff class is too diverse and is challenging too many of the Defendant’s policies and procedures. Def.’s Resp. 30– 31. The Court disagrees. In Sabata, the court declined to certify a class noting that the plaintiffs
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“suffer[ed] from a multitude of diseases, mental health conditions, and other alleged problems, and they challenge[d] many dozens of . . . policies and practices related to these various conditions.” Sabata v. Neb. Dep’t of Corr. Servs., No. 4:17-CV-3107, 2020 WL 3047479, at *148– 49 (D. Neb. June 8, 2020). The Sabata Court, however, was not only concerned with the breadth of the class and its claims. It found that the plaintiffs had failed to demonstrate commonality because they had “not shown a single policy or question whose resolution would apply across the class.” Id. at *130 (emphasis added).
While the Plaintiffs in this case have challenged numerous policies and practices, essential common questions of fact and law exist. Some common questions of fact in this case include: (1) whether Defendant fails to oversee the provision of healthcare in the regional jails; (2) whether Defendant provides inadequate mental and medical health care to pretrial detainees and inmates; and (3) whether Defendant has a practice or policy of “[f]ailing to complete adequate and timely intake procedures.” Pls.’ Reply 7 n.6. Moreover, at least one common question of law exists: whether the Defendant’s health care policies or practices evince deliberate indifference to the medical and mental health care needs of pretrial detainees and inmates in the regional jails.
Once again, these questions are consistent with common questions presented by other certified jail classes. See Scott, 61 F. Supp. 3d at 585; see also Ahlman v. Barnes, 445 F. Supp. 3d 671, 685 (C.D. Cal. 2020) (finding commonality satisfied where plaintiffs challenged institutional policies as deliberately indifferent); Armstrong, 275 F.3d at 868 (“[C]ommonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.”)).
Finally,3 Defendant argues that Plaintiffs have “failed to provide sufficient evidence to
3 Defendant’s response also raised failure to exhaust and NCCHC accreditation as arguments against a finding of commonality. Def.’s Resp. 32–34. Failure to exhaust is an affirmative defense that is addressed in the Court’s order
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establish that the alleged deficiencies are systemic and require systemic relief.” Id. at 30–31. Without delving too deeply into the merits of the case, the Court finds that Plaintiffs have provided adequate evidence of systemic deficiencies. All of the Named Plaintiffs described being denied essential medical treatment when they were admitted to the jails. Each of the Plaintiffs described instances of the jails refusing or failing to provide prescribed or necessary medication. Moreover, Plaintiffs presented reports of two experts who concluded that there were systemic deficiencies in the medical and mental health treatment provided by the WVDCR and the regional jails. Wills Rep. 3–4, 7, ECF No. 264-3; Venters Rep. 4–5, 21, ECF No. 264-2. The evidence provided is sufficient to support a finding that the members of the putative class are commonly exposed to systemic policies and practices. See Parsons, 754 F.3d at 678.
Accordingly, Plaintiffs have presented more than the one common question that is required by Rule 23 and have therefore satisfied the commonality requirement. See EQT, 764 F.3d at 360.
C. Typicality In addition to requiring common questions, Rule 23(a) requires the party seeking
certification to show that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The threshold of meeting typicality is “not high.” Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009), as amended (Oct. 8, 2009) (quoting Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993)). Typicality requires plaintiffs to show “(1) that their interests are squarely aligned with the interests of the class members and (2) that their claims arise from the same events and are premised on the same legal theories as the
on the Defendant’s motions for summary judgment. See Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015). With regard to NCCHC accreditation, the Defendant argues that the Court should consider the WVDCR’s accreditation status as “substantial evidence” that the Defendant has not been deliberately indifferent. In an attempt not to “engage in free-ranging merits inquiries at the certification stage,” Amgen Inc., 568 U.S. at 466, the Court declines to address these arguments in the instant order. Exhaustion under the Prison Litigation Reform Act and NCCHC accreditation are addressed in the Court’s accompanying summary judgment order.
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claims of the class members.” Jeffreys v. Commc'ns Workers of Am., AFL-CIO, 212 F.R.D. 320, 322 (E.D. Va. 2003). Typicality is satisfied when the “same constitutional claims apply to each proposed class member, and the legal defenses available to them are identical.” Nelson v. Warner, 336 F.R.D. 118, 123 (S.D.W. Va. 2020).
Defendant argues that typicality cannot be met because the facts that the named and unnamed class members would have to prove to win on their claim of deliberate indifference “put in issue every facet of medical and mental health care provided inmates in all regional jail facilities.” Def.’s Resp. 35 (citing Elizabeth M. v. Montenez, 458 F.3d 779, 787–88 (8th Cir. 2006)).4 Defendant, however, stretches Elizabeth M. too far. The court in Elizabeth M. explained that the plaintiffs in that case had presented “a laundry list of desired policy changes” accompanied by only vague allegations of inadequate treatment, which the court found placed “in issue every facet of mental health treatment, mak[ing] it impossible to evaluate . . . whether the treatment needs and injuries of [the named plaintiffs] are typical of other class members.” Elizabeth M., 458 F.3d at 787.
Here, Plaintiffs have made specific allegations of the inadequate treatment they received. Moreover, the fact that the individual class members may have different medical conditions, or may experience different “specific” injuries, does not defeat typicality. As has been made abundantly clear, the claimed injury is the exposure to policies and practices that place both the named and unnamed class members at a substantial risk of harm.
Plaintiffs have satisfied the typicality requirement. They are seeking injunctive relief on
4 Defendant also claims that “the named plaintiffs in this case do not typify the claims of the purported classes either because they are moot or because they have failed to exhaust administrative remedies as required under the PLRA.” Def.’s Resp. 35. These arguments are fully addressed and rejected by the Court in its accompanying order on summary judgment.
Defendant also raises overbreadth of the class as an argument against typicality. As the breadth of the class and clarification of the claimed injury has already been thoroughly addressed by the Court, it declines the opportunity to do so again.
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behalf of current and future jail residents to ensure the adequate provision of medical care. Their claims arise from Defendant’s alleged failure to provide adequate health care and to oversee the provision of services by WVDCR contractors. Plaintiffs’ claims arise under the same legal theory of deliberate indifference. Accordingly, the Named Plaintiffs’ “interests are squarely aligned with the interests of the class members,” and “their claims arise from the same events and are premised on the same legal theories as the claims of the class members.” Jeffreys, 212 F.R.D. at 322.
D. Fair and Adequate Representation of Class Interests Finally, Rule 23(a)(4) precludes certification unless “the representative parties will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This Court’s analysis of rule 23(a)(4) is guided by two lines of inquiry (1) whether there is conflict between the representatives and class members, and (2) whether the representatives will “vigorously prosecute the matter on behalf of the class.” Nelson, 336 F.R.D. at 123–24 (citing Stay the Course W.Va. v. Tennant, No. 1:12-CV-01658, 2013 WL 209479, at *3 (S.D.W. Va. Jan. 17, 2013)). The vigorous prosecution prong considers the abilities of both the class representatives and their attorneys. Black v. Rhone-Poulenc, Inc., 173 F.R.D. 156, 162 (S.D.W. Va. 1996) (citation omitted).
i. Adequacy of Class Representatives In the instant case, Defendant does not assert that conflict exists between the class representatives and the larger class, but instead list a number of arguments that she suggest undermine the adequacy of representation, including: (1) the class members have individual claims that are “subject to unique defenses such as mootness [and] failure to exhaust”; (2) “the named Plaintiffs lack credibility on key elements of claims made”; (3) “the named plaintiffs do not adequately represent all of the facilities . . . they attempt to include in their proposed classes”; (4) Plaintiffs “have not demonstrated that the named Plaintiffs are familiar with the policies they allege
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are inadequate”; and (5) they have not demonstrated that they “are exercising the requisite control of the litigation to ensure that [their] claims are vigorously prosecuted.” Def.’s Resp. 36–38. Although the Defendant largely failed to provide reasoning to support these assertions, the Court will address them briefly.
First, consistent with its accompanying summary judgment order, the Court finds mootness and failure to exhaust are no longer at issue in this case. Second, although Defendant boldly asserts that the Plaintiffs lack credibility, she cites to only on example, an excerpt of Plaintiff WellsWright’s deposition where she talks about her experience getting medication at two different jails. Def.’s Resp. 37. As Plaintiffs point out, nothing in Wells-Wright’s statements shows that she lacks credibility, or that her statements could be read to undermine the credibility of the other Named Plaintiffs. See Pls.’ Reply 16. Third, the Court is satisfied that Plaintiffs can adequately represent detainees and inmates in all of the regional jail facilities. Plaintiffs are challenging institutional deficiencies and, as previously discussed, have provided sufficient evidence to suggest that Defendant’s oversight and provision of mental and medical health care is consistent across all ten regional jails. Plaintiffs are not required to name a class representative at each facility. See Postawko, 910 F.3d at 1034 (affirming certification of class represented by three named plaintiffs challenging inadequate medical screening and care by the Missouri Department of Corrections); Unknown Parties v. Johnson, 163 F. Supp. 3d 630, 641–42 (D. Ariz. 2016) (finding three named plaintiffs were adequate to represent a class challenging the policies and procedures at eight border patrol stations in Arizona). Fourth, the Court rejects Defendant’s unsupported argument that Plaintiffs are not sufficiently familiar with the Defendant’s policies to challenge them. This case largely turns on an alleged policy of abdicating responsibility and a practice of providing insufficient medical and mental health care. Plaintiffs are, in their own words, “intimately familiar
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with the manner in which medical and mental health care is actually administered” in the Defendant’s jails. Pls.’ Reply 17. The Court is not sure what additional familiarity or awareness could be asked of them. Finally, Defendant’s assertion that Plaintiffs are not “exercising the requisite control of the litigation to ensure that [their] claims are vigorously prosecuted,” Def.’s Resp. 37, is as baseless as it is bold. In addition to the fact that hundreds of pages of argument and thousands of pages of exhibits have been presented to the Court by the Plaintiffs, the record shows that the Plaintiffs have engaged in timely and assertive prosecution of their claims.
As Defendant has provided no tenable argument as to why the class representatives are inadequate, the Court finds that Rule 23(a)(4) is satisfied. See Braggs v. Dunn, 317 F.R.D. 634, 666 (M.D. Ala. 2016) (“Adequate representation is usually presumed in the absence of contrary evidence….”) (quoting Access Now, Inc. v. Ambulatory Surgery Ctr. Grp., Ltd., 197 F.R.D. 522, 528 (S.D. Fla. 2000)).
ii. Adequacy of Class Counsel Plaintiffs’ counsel have also established that they are adequate to represent the interest of this class. See Hewlett v. Premier Salons Int'l, Inc., 185 F.R.D. 211, 218 (D. Md. 1997) (“In the absence of proof to the contrary, courts presume that class counsel is competent and sufficiently experienced to prosecute vigorously the action on behalf of the class.”). Mountain State Justice, Inc., is a reputable non-profit, public interest firm that has experience with class action litigation. Moreover, counsel for the Plaintiffs have ardently prosecuted this case since they took up representation in February 2019, as can be seen by their multiple motions to compel discovery, their numerous responses to the Defendant’s motions for summary judgment, and this motion for class certification. See Stay the Course W. Va. v. Tennant, No. 1:12-CV-01658, 2013 WL 209479, at *3–4 (S.D.W. Va. Jan. 17, 2013) (holding adequacy of representation not satisfied because
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proposed representative refused to contest the suit). The adequacy of representation requirement is therefore satisfied.
E. Satisfaction of Rule 23(b) Even where the requirements of Rule 23(a) are met, class plaintiffs must show that their
action fits into one of three categories listed in Rule 23(b). See Eisen, 417 U.S. at 163. Plaintiffs argue their claims fall within the confines of Rule 23(b)(2), which applies to claims where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).5
In Wal-Mart, the Supreme Court elucidated that Rule 23(b)(2) is only satisfied “when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart, 564 U.S. at 338.
The Court is satisfied that certification is appropriate under 23(b)(2). The Plaintiffs are seeking uniform injunctive relief in the form of “constitutionally sufficient medical and mental health care.” Pls.’ Reply 19; Mem. Supp. 2; Second Am. Compl. 33. If the health care policies and practices of the Defendant apply uniformly across the regional jails, and if Plaintiffs were to prevail on the merits, a single injunction would “provide relief to each member of the class.” Wal-Mart, 564 U.S. at 338. Each class member would not be entitled to a different or individual injunction.
5 Rule 23(b) is also satisfied under subjection (1) “if prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests,” or under subsection (3) if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(1), (3).
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Id.; see William B. Rubenstein, Newberg on Class Actions § 4.34 (5th ed. 2020) (“[I]f a prisoner in a prison conditions lawsuit secures a ruling that a prison policy violates the Constitution, the court-ordered injunctive relief will necessarily apply to all other prisoners.”).
F. Federalism Concerns Finally, Defendant urges the Court to deny certification claiming that the “overly broad
relief sought by Plaintiffs raises significant federalism concerns, essentially conferring jurisdiction and control over the health care of all inmates at ten (10) regional jail facilities.” Def.’s Resp. 39– 40. Given the weight of Plaintiffs’ claims, the Court reject this argument.
“[T]he scope of injunctive relief is dictated by the extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Lewis v. Casey, 518 U.S. 343, 359 (1996). While courts have a duty to respect the sovereignty of states,
[s]ystem-wide relief is required if the injury is the result of violations of a statute or the constitution that are attributable to policies or practices pervading the whole system (even though injuring a relatively small number of plaintiffs), or if the unlawful policies or practices affect such a broad range of plaintiffs that an overhaul of the system is the only feasible manner in which to address the class’s injury. Armstrong, 275 F.3d at 870. The constitutional violations alleged by Plaintiffs are within the Court’s jurisdiction, and the Court is not permitted to “shrink from [its] obligation to enforce the constitutional rights of all persons, including prisoners.” Brown v. Plata, 563 U.S. 493, 511 (2011) (internal quotation marks omitted) (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972)). The Court declines to “allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of [jail] administration.” Id.
IV. CONCLUSION In conclusion, the Court GRANTS, in part, Plaintiffs’ Motion for Class Certification. ECF
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No. 264. The Plaintiffs’ “Jail Class” is now certified and may proceed as a class action. The Court withholds judgment regarding the certification of Plaintiffs’ Disability Subclass.
The Court DIRECTS the parties to provide the Court with memoranda regarding the suitability of certification for that class. Plaintiffs’ supplemental memorandum is due by January 11, 2021. After Plaintiffs submit their memorandum, Defendant will have fourteen (14) days to file a response.
The Court further DIRECTS the parties to meet to address the completion of discovery and propose a new scheduling order. The parties’ Rule 26(f) report is due by January 11, 2021. The Court SCHEDULES a scheduling/status conference on January 19, 2021 at 11:30 AM.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of record and any unrepresented parties.
ENTER: December 21, 2020
ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE
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 Case 3:18-cv-01526 Document 358 Filed 12/21/20 Page 1 of 51 PageID #: 10381

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., et al.

Plaintiffs,

v.

CIVIL ACTION NO. 3:18-1526

BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, et al.

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are Defendant’s Motions for Summary Judgment as to John Baxley, Jr., Heather

Reed, Earl Edmondson, Danny Spiker, Donna Wells-Wright, and Joshua Hall. ECF Nos. 263, 267,

269, 271, 273, 277, and 328.1 For the reasoning provided herein, the Court DENIES, in part, and

GRANTS, in part, the following motions: ECF No. 263, ECF No. 267, ECF No. 269, ECF No.

271, and ECF No. 277. The Court also DENIES the following motions. ECF No. 273 and ECF

No. 328.

I. BACKGROUND

The present case is a class action2 brought on behalf of pretrial detainees and convicted

inmates housed at West Virginia’s regional jail facilities. In the Second Amended Complaint,3

1 ECF No. 328 is a “Supplemental Motion for Summary Judgment” as to Plaintiff Donna Wells-Wright. 2 Contemporaneous with this order, the Court is issuing a separate order granting in part the Plaintiffs’ Motion for
Class Certification, ECF No. 264. 3 The Court notes that this Complaint is titled “First Amended Class Action Complaint,” however, as it is the second
amended complaint, the Court will refer to it as such.

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Plaintiffs seek injunctive relief requiring the Defendant, Commissioner of the West Virginia Division of Corrections and Rehabilitation,4 to “promptly provide appropriate and necessary medical and mental health treatment to inmates upon admission, as required under the Eighth and Fourteenth Amendments of the United States Constitution, and the Americans with Disabilities Act.” Second Am. Compl. ¶ 1, ECF No. 67.5
Plaintiffs plead the following facts. West Virginia Division of Corrections and Rehabilitation (“WVDCR”) is the government agency tasked with operating the jails and prisons in West Virginia. Defendant Betsy Jividen serves as the Commissioner of WVDCR. As Commissioner, she is responsible for “establishing, monitoring, and enforcing policy directives and procedures that ensure constitutional confinement and treatment of all people in the custody of the WVDOCR.” Id. at ¶ 8. Accordingly, Defendant Jividen is responsible for “ensuring that inmates receive appropriate medical and mental health treatment upon admission to and while housed in any West Virginia Jail.” Id.
In Count I, Plaintiffs assert that Defendant violated the Eighth and Fourteenth Amendments of the United States Constitution. Pursuant to 42 U.S.C. § 1983, they claim the Defendant, acting under the color of state law, has been “deliberately indifferent to the serious medical needs of Plaintiffs and other similarly situated inmates by failing to establish, monitor, and/or enforce policy directives and operational procedures to ensure that inmates admitted to jails in West Virginia receive prompt medical treatment for their medical and mental health conditions.” Id. at ¶ 247. As a result of this deliberate indifference, Plaintiffs claim that they have suffered “physical, mental,
4 The Second Amended Class Action Complaint originally included West Virginia Division of Corrections and Rehabilitation as a named Defendant. In Response to the Defendants’ Motions for Summary Judgment, Plaintiffs voluntarily dismissed WVDCR as a party to this action. See Pl. Baxley’s Resp. 1 n.1, ECF No. 302. They are proceeding “solely against Commissioner Betsy Jividen, in her official capacity.” Id. 5 The Complaint originally included a third claim that the conditions at Western Regional Jail violated the Eighth and Fourteenth Amendments. Second. Am. Compl. ¶¶ 259–70. On May 22, 2020, the parties submitted a Stipulation of Voluntary of Dismissal of this claim. Stipulation, ECF No. 223.
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and emotional injuries, as well as being denied the ability to participate in the daily activities of jail life.” Id. at ¶ 249. Plaintiffs seek only injunctive relief, and have asked the Court to “require Defendant[] to implement or enforce policies, procedures, and practices necessary to ensure prompt medical and mental health care is provided to all inmates admitted to a jail in West Virginia, and provide the training, equipment and supplies necessary to all relevant employees to ensure those policies and practices are implemented with fidelity.” Id. at ¶ 250(c).
In Count II, Plaintiffs assert that Defendant’s failure to “implement a policy or procedure to provide appropriate medical and mental health services” has violated the Americans with Disabilities Act (“ADA”) “through a pattern and practice of discrimination; inadequate and discriminatory methods of state-wide administration and supervision; a continuing pattern and practice of deliberate indifference; and violation of the reasonable accommodation requirement of federal law.” Id. at ¶ 257; see Pl. Baxley’s Resp. 21, ECF No. 302 (Plaintiffs “assert that Defendant, through DCR’s complete lack of policies, procedures, and oversight, has failed to provide them with reasonable accommodations for their disabilities, and as a result, that Plaintiffs have been excluded from participation in, and denied the benefits of, the services, programs, or activities, of jail life.”).
To support their claims, the Named Plaintiffs plead these additional facts: 6 A. Plaintiff John Baxley, Jr.
Plaintiff Baxley has been diagnosed with depression, bipolar disorder, paranoid delusional disorder, schizophrenia, seizure disorder, asthma, and substance abuse disorder. Second Am. Compl. ¶ 28. When he entered Western Regional Jail, he informed the jail of his diagnoses, but was placed on suicide watch and taken off his medications, despite the risk of serious withdrawal
6 In addition to the following facts, each of the Named Plaintiffs claim to be “qualified individuals with a disability” under the ADA. Second Am. Compl. ¶¶ 12, 16, 17, 18, 20, 21.
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symptoms. Id. at ¶¶ 29–32, 35.7 As a result he claims that he “fe[lt] suicidal and entered a psychotic state” and suffered from other physical side effects. Id. at ¶ 35. He reports that at least two more episodes followed where the Defendant failed to provide him with medication. Id. at ¶¶ 38, 41– 42; Pl. Baxley’s Resp. 2–3. Baxley also claims that he had “numerous seizures” in WVDCR custody and was not seen by an outside neurologist. Pl. Baxley’s Resp. 3. B. Plaintiff Heather Reed
Plaintiff Reed has multiple diagnoses including bipolar disorder, depression, anxiety, ADHD, type I diabetes, thyroid problems, rheumatoid arthritis, gastritis, and a heart condition. Second Am. Compl. ¶ 156. She takes multiple prescriptions daily, including insulin, Lamictal, Vistaril, Synthroid, Prilosec, Adderall, and a heart medication. Id. at ¶ 157. When she was transferred from an Ohio jail to Northern Regional, she claims that she was “denied all medications except her insulin, thyroid medication, and heart medication,” even though she believed the medications were transferred to West Virginia with her. Id. at ¶¶ 159–60. Reed repeatedly asked to be put back on the medication needed to control her bipolar disorder, but WVDCR denied her requests for several months. Id. at ¶¶ 161–62.
Reed also claims that she witnessed a nurse at Tygart Valley mixing her insulins and has been having “episodes of passing out.” Id. at ¶¶ 164–67. Despite reporting these episodes, Defendant did not conduct any testing or provide other appropriate care. Id. at ¶ 168. In response to Defendant’s claims that she refused medication, Reed acknowledges that there are times when she has refused her insulin, but she states that she did so because they were offered infrequently or at incorrect times. Pl. Reed’s Resp. 3, ECF No. 304. C. Plaintiff Earl Edmondson
7 Baxley also claims that his wife tried to bring medications to the jail but was not permitted to do so. Second Am. Compl. ¶ 30.
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Plaintiff Edmondson suffers from Post-Traumatic Stress Disorder, has chronic sinus issues, has a bulging disc in his back, and needs false teeth. Second Am. Compl. ¶¶ 106, 108. He informed the WVDCR of his conditions but was still placed in an overcrowded cell where he was forced to sleep on the floor. Id. at ¶ 110. Additionally, Defendant failed to provide him medication for approximately three months to treat his PTSD, causing him to experience “flash backs, panic attacks, severe depression, insomnia, and low energy.” Id. at ¶¶ 112–13. His sinus infection also remained untreated for approximately three months. Id. at ¶ 115.
Moreover, even though he informed the jail that false teeth had already been prepared for him, the jail refused to have his teeth delivered and that his ability to eat has been impaired as a result. Id. at ¶ 116. Finally, Edmondson asserts that before his incarceration, he underwent testing for bone cancer and was awaiting results when he was jailed. Id. at ¶ 107. He claims that the Defendant has “failed and refused to complete the testing necessary” for this cancer, despite Edmondson’s fears that the cancer has progressed. Id. at ¶¶ 117–18. D. Plaintiff Danny Spiker, Jr.
Plaintiff Spiker was suicidal when he entered the Defendant’s care and that he informed them of the same. Id. at ¶¶ 47–48. Nevertheless, WVDCR did not complete a medical intake and instead placed him in holding with multiple other inmates where he had a panic attack and had to be transported to a hospital for evaluation. Id. at ¶ 50. When he returned to the jail with a head injury, he was identified as a suicidal inmate, but was not seen by medical professionals. Id. at 52– 53. Instead, he was unsupervised to the extent that he was able to “pick at his wounds for over three hours” before he was discovered “lying face down on the floor surrounded by a large amount of blood.” Id. at ¶¶ 54–56. He was again transported to the hospital for bandaging and returned to
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the jail where he was restrained for several hours, placed in a “pickle suit,”8 and put on suicide watch. Id. at ¶¶ 57–59.
Despite these events, when a mental health worker finally saw him, no evaluation was done, and he was placed into general population where he attempted suicide. Id. at ¶¶ 59–62. After his suicide attempt, Spiker was transferred to a hospital for treatment and then subsequently reincarcerated as a pretrial detainee in the Defendant’s jails. Pl. Spiker’s Resp. 4–5, ECF No. 303. Although he claims that he reported the medication the hospital had prescribed him for treatment of his mental illness, Defendant’s medical providers halved one of his medications and refused to provide another. Id. at 5.
Spiker has attempted suicide numerous times since his return. Id. “[R]ather than providing appropriate mental health treatment, DCR has responded to Mr. Spiker’s mental health emergencies by spraying him with chemical agents, restraining him in a restraint chair, and placing him in a ‘cage’ the size of one person.” Id.
Spiker asserts that he has “repeatedly requested adequate mental health treatment to no avail.” Id. At the time counsel filed the response to the motion for summary judgment against him, Spiker remained on 24-hour suicide watch without access to a bed, clothing, or the commissary. Id. at 6. He “has only been let out of [his] cell just two to three times over a two month period for ‘recreation’ for around twenty to thirty minutes.” Id. E. Plaintiff Donna Wells-Wright
Plaintiff Wells-Wright is a fifty-four year old woman who has emphysema, COPD, hiatal hernia, gastritis, high blood pressure, hypertension, muscle spasms, spinal stenosis, degenerative disc disease, a rare genetic bone deterioration disease, bipolar disorder, and schizoaffective
8 A pickle suit is a green suit that is used to identify suicidal inmates. Second Am. Compl. ¶ 52.
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disorder.” Pl. Wells-Wright’s Resp. 1–2, ECF No. 306; Second. Am. Compl. ¶ 69. She claims that she informed WVDCR of her many health diagnoses and prescribed medications when she entered Northern Regional Jail. Second Am. Compl. ¶¶ 68–70. Even so, she received no medication for the three days. Id. at 371–72. She was then transferred to North Central Regional where she once again provided information about her health conditions and prescriptions. Id. at ¶ 73. Wells-Wright “placed in a holding cell with approximately sixteen other women for seven days, while undergoing detox.” Id. at 74.9 In that cell, she was forced to sleep on the floor without only a blanket for bedding. Id. at 75.
Defendant continued to withhold her medications, and once she did start receiving her medications, they were at insufficient dosages to treat her medical conditions. Id. at ¶ 76. As a result, “[b]y the time she was moved from the holding cell, she was not able to lift herself up off the floor, and had to be lifted by other people.” Id. at ¶¶ 77–78. Still, she was not given medical treatment and did not receive inhalers until 15 days after her transfer. Id. at ¶ 81.10 She was soon transferred back to Northern Regional, but her medications were not transported back with her. Id. at ¶ 85. Even when her sister delivered the inhalers to Northern Regional, they were withheld for three days. Id. at ¶¶ 86–87. Wells-Wright states that she “never received meaningful treatment” for the chronic pain she reported. Id. at ¶ 88. Wells-Wright insists that Defendant’s failure to maintain records of her conditions, medications, and treatments and failure to transport her medications each time she was transferred caused her to go for “days or weeks” without medication. Pl. Wells-Wright’s Resp. at 2–3. F. Plaintiff Joshua Hall
9 Wells-Wright states that she was “detoxing in part from her pain medication, which is prescribed for her multiple chronic conditions.” Second Am. Compl. ¶ 74. 10 Wells-Wright claims that it was her sister, not WVDCR, who supplied her inhalers. Second Am. Compl. ¶ 81.
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Plaintiff Hall “has a long history of mental health issues including severe anxiety and substance use disorder,” in addition to medical diagnoses of tachycardia and high blood pressure. Second Am. Compl. ¶ 122. Upon his admission to North Central Regional Jail, he informed WVDCR of his diagnoses and the prescriptions he takes to treat his conditions. Id. at ¶¶ 121, 123– 24. He asserts that he was placed into a crowded holding cell for four days and was not provided any medications. Id. at ¶¶ 124–28.
Although he began receiving his medications after he was released from holding, about one month later WVDCR “abruptly” stopped providing him with the medication for his anxiety for approximately twenty days. Id. at ¶¶ 128–29. Hall requested to see a psychiatrist many times but did not see one until 72 days after his admission. Pl. Hall’s Resp. 3, ECF No. 308.
Hall also claims that medical staff failed to explain to him that his blood work showed extremely high potassium levels, and as a result, he refused secondary testing “assuming that it was a mistake, since he had just had his labs.” Id. Since this time, he has not been re-evaluated despite the potentially “life-threatening risks” of high potassium levels. Id. at 3–4. G. Unnamed Plaintiff R.H.
Plaintiffs assert that R.H., an anonymous inmate with HIV, has been denied his antiretroviral medications. Second Am. Compl. ¶¶ 171–73. Once the jail started providing him medications, it only provided one of the drugs in his anti-retroviral regimen. Id. at ¶ 173. Although he eventually began receiving his needed medications, Plaintiffs claims that after each one-month prescription would run out, “he consistently went about a week without medications before he would begin to receive them again.” Id. at ¶¶ 175–76.
II. LEGAL STANDARD
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To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).
The nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
III. DISCUSSION Defendant has moved for summary judgment based on several different arguments. First, she alleges that five of the six Named Plaintiffs should be dismissed based on mootness. Second, Defendant argues that all of the Plaintiffs have failed to exhaust under the Prison Litigation Reform Act. Third, Defendant argues that Plaintiffs have not presented sufficient evidence to support their claim for deliberate indifference in Count I of the Second Amended Complaint. Fourth, she claims that because the regional jails are certified by the National Commission on Correctional Health Care, the Court should conclude as a matter of law that Defendant was not deliberately indifferent under Count I. Fifth, Defendant argues that Count II should be dismissed because Plaintiffs have
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not provided sufficient evidence to support their Americans with Disabilities Act claims. Finally, Defendant argues that Count I should be dismissed against WVDCR since it is not a person under Section 1983.11
Each argument is addressed in turn. A. Mootness
Article III, section 2 of the United States Constitution limits the authority of the federal judiciary to “cases” and “controversies.” To ensure courts are acting within their constitutional authority, the mootness doctrine asks courts to consider whether the issues before them are still “live” and if the parties before them retain a “legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
Mootness is often described as “standing set in a time frame.” U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). Generally, it requires that litigants have a personal stake in the litigation from start to finish. Id. By dismissing cases for mootness, courts “avoid an unnecessary ruling on the merits.” Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 597 (1984) (Blackmun, J., dissenting).
In cases involving prison and jail conditions, courts frequently find that claims are moot when an inmate is released or transferred to a different facility. See, e.g., Incumaa v. Ozmint, 507 F.3d 281, 286–87 (4th Cir. 2007) (“Mootness questions often arise in cases involving inmate
11 Because the Plaintiffs dismissed WVDCR as a defendant in this action, the Court will not discuss this argument at length. Section 1983 provides, “[e]very person” who acts under color of law to deprive another of their rights, is liable in an action at law, equity, or other proceeding for redress. 42 U.S.C. § 1983. It is well established that neither the state nor a state agency is a “person” under Section 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Va. Off. for Prot. & Advoc. v. Reinhard, 405 F.3d 185, 189 (4th Cir. 2005). Accordingly, had Plaintiffs not voluntarily dismissed WVDCR, the Court would have granted summary judgment in favor of WVDCR as to Count I of the Second Amended Complaint (deliberate indifference per Section 1983).
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challenges to prison policies or conditions, and courts, including our own, have held that the transfer of an inmate from a unit or location where he is subject to the challenged policy, practice, or condition, to a different unit or location where he is no longer subject to the challenged policy, practice, or condition moots his claims for injunctive and declaratory relief . . ..”); S.M.B. v. W. Virginia Reg'l Jail & Corr. Facility Auth., No. CV 3:17-1300, 2017 WL 4849221 (S.D.W. Va. Oct. 26, 2017) (“In prisoner cases, specifically, . . . a prisoner challenging a specified prison policy [must] have a ‘present interest affected by that policy’ in order to be heard.”) (quoting Weinstein v. Bradford, 423 U.S. 147, 148 (1975)).
The judiciary, nonetheless, has recognized a small number of exceptions to the mootness doctrine. In civil cases, courts have applied a mootness exception in cases that are “capable of repetition, yet evading review.” See, e.g., Murphy v. Hunt, 455 U.S. 478, 481 (1982). In order for this exception to apply, the plaintiff must show both that the injury is of the type that is likely to happen to the same plaintiff again and that the challenged conduct or activity is too short in duration “to be fully litigated prior to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
A similar exception applies exclusively to class actions. There are some class action claims that “are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Geraghty, 445 U.S. at 399 (citing Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)). The “inherently transitory” exception “was developed to address circumstances in which the challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013).
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In this case, Defendant moved for summary judgment based on mootness for five of the six remaining Named Plaintiffs. The Court will briefly discuss mootness of the Plaintiffs in two categories (1) Plaintiffs who are still in WVDCR custody and (2) Plaintiffs who have been transferred or released from WVDCR custody.
i. Plaintiffs in WVDCR Custody Two Named Plaintiffs in this case are still incarcerated at a West Virginia regional jail
facility: Joshua Hall and Danny Spiker, Jr. 1. Joshua Hall
Regarding Plaintiff Hall, Defendant asserts that his claims should be dismissed as moot because his transfer to a prison is “imminent.” Def.’s Mot. Summ. J. (Hall) 2, ECF No. 277. Despite this assertion, Plaintiff Hall is in WVDCR custody. He is currently incarcerated at Potomac Highlands Regional Jail, and before a transfer to that facility, he was housed at North Central Regional Jail from October 1, 2019 to February 26, 2020. Huffman Aff. 4, ECF No. 2631;12 Hall Dep. 8, ECF No. 277-2; Pl. Hall’s Resp. 1. Plaintiff Hall is a convicted inmate who is currently serving a 1–5 year sentence for strangulation. Hall Dep. 8. Defendant suggests that but for the COVID-19 pandemic, Plaintiff Hall would have already been transferred to a prison, mooting his claims. Def.’s Mot. Summ. J. (Hall) 2; Huffman Aff. 4.
Plaintiffs couch this argument as “creative,” but without merit. Pl. Hall’s Resp. 4. The Court agrees. Although Defendant claims Hall’s transfer to a prison is imminent, she provided nothing to support this claim. A vague statement that he is “scheduled for a transfer to a prison,” Def.’s Mot. Summ. J. (Hall) 5, is an insufficient basis upon which to dismiss a Plaintiff’s claim as moot. As long as Plaintiff Hall remains within the Defendant’s custody, he is subject to the policies
12 Jonathan E. Huffman is employed by WVDCR as the Assistant Director for Records and Interstate Compact. Huffman Aff. ¶ 1, ECF No. 263-1.
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that the Plaintiffs challenge. Plaintiff Hall’s claims were live at the time the Second Amended Class Action Complaint was filed, when the Plaintiffs filed their First and Second Motions for Class Certification, and to the Court’s knowledge, to this date.
2. Danny Spiker, Jr. To date no motion has been filed regarding mootness of claims brought by Plaintiff Danny Spiker, Jr. To the Court’s knowledge, Spiker is still in WVDCR custody and retains live claims against the Defendant. ii. Plaintiffs Who Were Transferred to a State Prison or Released from WVDCR Custody The four remaining Named Plaintiffs have either been transferred to a state prison or have been altogether released from custody. Defendant argues that the claims of these Plaintiffs are now moot because the Plaintiffs are no longer subject to the policies that they are contesting. See, e.g., Def.’s Mot. Summ. J. (Baxley) 2. Plaintiffs assert that the inherently transitory exception to mootness applies in this case. Since Gerstein, courts have held that in order for the exception to apply, two requirements must be met: (1) “the injury [must] be so transitory that it would likely evade review by becoming moot before the district court can rule on class certification,” and (2) “it is certain other class members are suffering the injury.” Wilson v. Gordon, 822 F.3d 934, 945 (6th Cir. 2016); Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010); Genesis Healthcare, 569 U.S. at 76. The inherently transitory exception is “invariably focused on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant’s litigation strategy.” Genesis Healthcare, 569 U.S. at 76–77 (citing Swisher v. Brady, 438 U.S. 204, 214, n.11 (1978); Spencer v. Kemna, 523 U.S. 1, 17–18 (1998)). If the exception applies, it allows the court’s ruling on a motion for class certification to “relate back” to the date the class action complaint was filed. Id. at 76; Stein v. Buccaneer Ltd.,
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772 F.3d 698, 707 (11th Cir. 2014). Accordingly, if the claims are inherently transitory, a plaintiff’s claim will be saved so long as he or she had a live claim when the complaint was filed.
Here, the claims brought by the Plaintiffs are the type that would likely evade review by becoming moot before the Court could rule on class certification. See Genesis Healthcare, 569 U.S. at 76. Given the nature of WVDCR incarceration, inmates would not likely be able to seek certification before their claims become moot. According to WVDCR’s 2018 Annual Report, West Virginia Regional Jails house “both pre-trial defendants and persons sentenced to terms of one year or less.” 2018 Ann. Rep. 4, ECF No. 302-15. The jails may also house convicted inmates who are “awaiting transfer to the state correctional system.” Id. In response to the Plaintiffs’ Motion for Class Certification, Defendant noted that the majority of inmates spend less than 13 days in WVDCR custody. Def.’s Resp. Mot. Class Cert. 4 n.3, ECF No. 307. (“Also, it should be noted 65% of inmates in 2018 and 70% of all inmates in 2019 stayed at the regional jail on average for less than 13 days.”).
Defendant suggests that the inherently transitory doctrine is inapplicable to this case because the plaintiff class is made up of both pretrial detainees and convicted inmates. See, e.g., Def.’s Reply (Wells-Wright Suppl. Mot.) 7–12, ECF No. 342.13 Relying on Ward v. Galdieux, the Defendant argues that the inherently transitory exception only applies where the plaintiffs cannot estimate how long they will remain in jail. Id. at 8 (citing Ward v. Gladieux, No. 1:16-CV-43, 2017
13 Defendant presents two other arguments against application of the exception that the Court declines to address at length. First, Defendant argues that the exception is inapplicable because the class should not be certified. See Def.’s Reply (Baxley) 3–4, ECF No. 321. Regarding this argument, the Court directs the Defendant to the Court’s order on class certification.
Defendant also suggests that Plaintiffs were not diligent in filing their Motions for Class Certification. See Def.’s Reply (Wells-Wright Suppl. Mot.) 11–12. The Court wholly rejects this argument. There is no rule in the Fourth Circuit prescribing the timeframe in which a Motion for Class Certification can be filed. More importantly, the Plaintiffs filed their first motion for certification only two months after the Second Amended Complaint was filed.
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WL 1954109 (N.D. Ind. May 11, 2017)). In Ward, the court found that the “essence of the ‘inherently transitory’ exception is uncertainty about the length of time a claim will remain alive.” Ward, 2017 WL 1954109, at *3 (quoting Moreno v. Napolitano, No. 11 C 5452, 2012 WL 5995820, at *6 (N.D. Ill. Nov. 30, 2012)). The Ward Court determined that the inherently transitory exception did not apply to a mixed class of pretrial and convicted inmates, because the convicted inmates “can estimate how long they are going to be imprisoned.” Id. (emphasis in original).
Although this case involves both pretrial detainees and convicted inmates, the record here shows that the confinement in the regional jails is inherently unpredictable in length for all of the Plaintiffs. Half the Named Plaintiffs—Baxley,14 Wells-Wright, and Spiker—brought their claims as pretrial detainees who, by the nature of their pretrial status, could not predict how long they would remain in WVDCR custody. See Gerstein, 420 U.S. at 110 n.11. (“The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class.”).
The Named Plaintiffs who have been convicted, similarly, could not be expected to estimate how long they would remain in the care of WVDCR. Each of the convicted Plaintiffs— Edmondson, Reed, and Hall—either remained in a regional jail for only a short period of time before being transferred to a prison or is currently slated for transfer in the near future. Edmondson remained at a regional jail for only six months before he was transferred to a prison. Huffman Aff.
14 Although Baxley has since been convicted of a crime, he was a pretrial detainee when he filed his complaint. See Def.’s Mot. Summ. J. (Baxley) 3 (“Mr. Baxley was in jail facing charges . . ..”). Baxley was not convicted until January 2, 2020. Pl. Baxley’s Resp. 22 n.18. Notably, even if the Court is to consider Baxley a convicted inmate, as Defendant suggests it should, Baxley was transferred to a prison soon after his conviction, again highlighting the short and unpredictable nature of post-trial incarceration at the regional jails. See Huffman Aff. 3.
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4. Reed was incarcerated at two different regional jails for only three to five months each before she was transferred to a prison. Id. Hall had only been in custody for approximately four months when the Plaintiffs first moved for class certification. Id. Most persuasively, Defendant’s own motion suggests that if not for the COVID-19 pandemic, Hall, as a convicted inmate, would have be transferred out of the jail system. Def.’s Mot. Summ. J. (Hall) 2.
The length of detention at the WVDCR’s jails “generally cannot be determined at the outset and is subject to a number of unpredictable factors, thereby making it inherently transitory.” Olson, 594 F.3d at 582. The frequent transfers and short periods of incarceration in the instant case, in conjunction with the Defendant’s policy of only housing convicted inmates for short periods of time, make it extremely unlikely—if not almost impossible—for any inmate to challenge the conditions of his or her confinement before the claim becomes moot. This is precisely the type situation for which the inherently transitory exception exists. See Genesis Healthcare, 569 U.S. at 76.
Additionally, Plaintiffs have established that “the constant existence of a class of persons suffering the deprivation is certain.” See Gerstein, 420 U.S. at 110 n.11. This can be seen by looking at WVDCR’s own reported numbers. According to WVDCR’s 2019 Annual Report, the regional jails admitted 47,051 inmates and released 44,696 inmates in 2019. 2019 Ann. Rep. 4, ECF No. 302-14. The class of persons incarcerated is ever changing but ever present. Each newly admitted inmate is subjected to the health care policies that the Plaintiffs are seeking to challenge in this case.
Having determined that the claims are inherently transitory because they would likely evade review before a trial court could rule on a motion for class certification and that a continuing class of individuals is allegedly subject to the policies the plaintiffs seek to challenge, the Court
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must determine whether the Plaintiffs had live claims when the class action complaint was filed. See Stein, 772 F.3d at 707. Each Plaintiff is discussed individually.
1. John Baxley, Jr. Plaintiff Baxley was admitted to WVDCR custody sometime between August 14, 2018 and August 16, 2018.15 Baxley was admitted to Western Regional jail as a pretrial detainee. Def.’s Mot. Summ. J. (Baxley) 3. He filed a personal complaint on December 18, 2018, challenging the conditions at Western Regional Jail. Compl., ECF No. 1. That complaint was eventually consolidated with others as this class action. During the pendency of this litigation, Baxley was convicted of robbery. Huffman Aff. 3. He remained in WVDCR custody until March 11, 2020, when he was transferred to Salem Correctional Center, a medium security prison. Id. The Court finds that Baxley had a live claim when the First Amended Class Action Complaint was filed on April 25, 2019, and when the Second Amended Class Action Complaint was filed on December 19, 2019. See First Am. Compl., ECF No. 18; Second Am. Compl. The Court also finds that he retained a live claim when the Plaintiffs filed their first Motion for Class Certification on February 3, 2020. See Prelim. Mot., ECF No. 88. Accordingly, his claims are not moot under the class action inherently transitory exception.
2. Earl Edmondson Plaintiff Edmondson was admitted to Northern Regional Jail on July 15, 2019. Second Am. Compl. ¶ 109; Huffman Aff. 4. Edmondson remained at Northern Regional until January 17, 2020, when he was transferred to a prison. Huffman Aff. 4. The Court finds that Edmondson was in
15 The exact date of Baxley’s admission is contested by the parties. Second Am. Compl. ¶ 27 (August 15, 2018); Def.’s Mem. Supp. (Baxley) 1, ECF No. 265 (August 16, 2018); Pl. Baxley’s Resp. 2 n.3 (August 14, 2018); Def.’s Reply (Baxley) 1 n.1 (August 15, 2018). The Court finds the exact date of Baxley’s arrival is not significant.
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WVDCR custody on December 19, 2019, when the Second Amended Class Action Complaint was filed. Therefore, his claims are not moot under the inherently transitory exception.
3. Heather Reed Plaintiff Reed entered WVDCR custody at Northern Regional Jail as a convicted inmate on April 10, 2019. Huffman Aff. 3. On July 29, 2019, she was transferred to Tygart Valley Regional Jail where she remained until November 20, 2019. Id. On November 20, 2019, Reed was transferred to Lakin Correctional Center to serve the remainder of her sentence. Id. Although Reed was not in the Defendant’s custody when the Second Amended Class Action Complaint was filed, she was in custody when the First Amended Class Action Complaint was filed on April 25, 2019. See First Am. Compl. While Reed was not named in the First Amended Class Action Complaint, she was undoubtedly an unnamed class member and was subject to the policies that the Plaintiffs are challenging. Moreover, according to the facts plead by Reed, by the time the First Amended Complaint was filed, she was being denied the medications she was prescribed to treat her mental illness. Second Am. Compl. ¶¶ 158–70. The Court is satisfied that her claims are saved by the inherently transitory exception.
4. Donna Wells-Wright Plaintiff Donna Wells-Wright was admitted to Northern Regional Jail on August 25, 2019. Id. at ¶ 68. From the various memoranda provided by the parties, the Court was able to deduce the following timeline. Wells-Wright was initially incarcerated from August 25, 2019 until November 2019. Id. at ¶¶ 18, 68. She was then reincarcerated on January 7, 2020 until March 2020, when she was released for a second time. Def.’s Suppl. Mot. Summ. J. 1. Finally, she was rearrested and detained for a third time from June 26, 2020 until July 29, 2020. Id. at 1–2.
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The Defendant submits that the inherently transitory exception does not apply to WellsWright because she had already been released from custody when the Second Amended Complaint was filed. Def.’s Reply (Wells-Wright Suppl.) 4–5. It is undeniable that the exception “cannot salvage a suit that was never justiciable to begin with.” Gomez v. Trump, No. 20-CV-01419 (APM), 2020 WL 3429786, at *10 (D.D.C. June 23, 2020) (citing J.D. v. Azar, 925 F.3d 1291, 1308, 1310 (D.C. Cir. 2019)). The Court finds, however, that it does not need to relate WellsWright’s claims back to the class complaint; her claims were live when both of the Plaintiffs’ Motions for Class Certification were filed on February 2, 2020 and July 17, 2020.
Generally, the inherently transitory exception preserves claims that would otherwise be moot by relating the motion for class certification back to the Amended Complaint. See Stein, 772 F.3d at 707. The purpose behind the exception is similarly served by retaining claims that would otherwise be moot but were live at the time the motion for class certification was filed. Having found that the nature of the claims is inherently transitory, it is clear to the Court that even if WellsWright was not in custody when the Second Amended Complaint was filed, she was certainly incarcerated at WVDCR jails after litigation in this case started, she was subject to the same policies the Plaintiffs challenge, and she was undoubtedly an unnamed class member whose claims could have been added at any time by the Plaintiffs. It is not as though she never had a justiciable claim. Instead, because of the inherently transitory nature of her pretrial incarceration, she was released before the Court could certify the instant class. Accordingly, Well-Wright’s claims are not moot, and she may proceed as a Named Plaintiff.
iii. Conclusion Regarding Mootness Accordingly, the Court denies Defendant’s motion for summary judgment against
Plaintiffs based on mootness.
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B. Failure to Exhaust i. The Prison Litigation Reform Act Pursuant to the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with
respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Failure to exhaust “is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015) (citing Jones v. Bock, 549 U.S. 199, 212–13 (2007)). However, if a defendant makes “a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff.” Creel v. Hudson, No. 2:14-cv-10648, 2017 WL 4004579, at *4 (S.D.W. Va. Sept. 12, 2017).
ii. WVDCR Grievance Process While it is the PLRA that requires exhaustion, prisons and jails establish the actual
exhaustion process. See Jones, 549 U.S. at 218; Woodford v. Ngo, 548 U.S. 81, 95 (2006) (noting that “proper exhaustion” only occurs when “the grievant complies with the system’s critical procedural rules”). The West Virginia Code provides that the Commissioner of WVDCR and the Executive Director of the Regional Jail Authority “are authorized to establish procedures for ordinary administrative remedies according to their respective authority for issuance of policies governing the conduct of inmates.” W. Va. Code § 25-1A-2(b).
Defendant states that WVDCR’s grievance process is set forth in its “Inmate Handbook” (“Handbook”). See Def.’s Mem. Supp. (Baxley) 8. According to the Defendant, “[u]nder Grievance Procedures outlined in the Inmate Handbook, an inmate may file a grievance to an Administrator and, if unsatisfied by the response, the inmate may appeal to the Chief of Operations.
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Again, if the inmate is not satisfied with the response received or does not receive a timely
response, a third level of administrative oversight is included in the policy: an appeal to the
Commissioner of DCR.” Id. at 8–9.
The grievance process as listed in the Handbook provides:
Any inmate may file a grievance if they believe they have a serious complaint or a significant problem. The following grievance procedure shall be used: 1) If an inmate wishes to use the grievance procedure, jail personnel will provide
the inmate with an inmate grievance form. 2) The inmate shall complete the form, addressed to the Administrator; the form,
as completed by the inmate shall be transmitted to the Administrator’s office by jail personnel without being read or altered and within a reasonable time, not later than the end of the shift. 3) The Administrator upon receipt of the grievance may reject the grievance if it appears on its face to have been filed in bad faith. 4) The Administrator, if the grievance is not rejected pursuant to Paragraph 3, shall provide the inmate an opportunity to be heard before a decision is made on the grievance. The Administrator may assign a staff member to investigate the complaint and report written findings within forty-eight hours and shall inform the inmate of such action. 5) The Administrator shall provide a written decision with regard to the grievance to the grieving inmate within twenty-four (24) hours of the receipt of the investigation report. Such written decision shall include a statement of the action taken concerning the grievance, the reasons for such action, and procedures for appeal of the decision.
Inmate Handbook, 5–6, ECF No. 263-4. The Handbook further provides:
1) An inmate, dissatisfied with the Administrator’s decision, may appeal such decision to the Chief of Operations. Such appeal must be filed, in writing, within five days of the receipt of the Administrator’s decision and must include a copy of the initial complaint and the Administrator’s decision to the inmate within five days of receipt of all information relating to the grievance, excluding weekends and holidays.
2) Inmate appeals and grievances shall be mailed in accordance with procedures applying to legal correspondence.
3) Reasonable amounts of postage will be provided to indigent inmates who wish to mail a grievance to the Chief of Operations; whenever possible, such appeals may be included in the interdepartmental mail sent to the Central Office by the jail.
4) Within five (5) days of receipt of the Level Two Decision, an inmate may request a review of the office of the Executive Director. The inmate must mail copies of the original Complaint and copies of all responses to the office of the
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Executive Director, Regional Jail Authority. Id. at 6.
iii. Availability of Grievance Process The text of the PLRA makes clear that exhaustion is only required to the extent that
administrative remedies are actually available to an inmate. The availability of administrative remedies under the PLRA and exhaustion itself are both questions of law. See Ray v. Kertes, 130 F. App’x 541, 543–44 (3d Cir. 2005); Ballenger v. Hill, No. 3:15-CV-12558, 2018 WL 4655709, at *3 (S.D.W. Va. Sept. 27, 2018). Accordingly, any disputes of facts regarding exhaustion will be resolved by the Court.
Determining what administrative remedies or procedures are available requires courts to look beyond what procedures are “on the books.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). The procedure provided must be “capable of use to obtain relief.” Id. An administrative procedure is not considered “available” if (1) “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of [it] through machination, misrepresentation, or intimidation.” Id. at 1859–60.
Defendant moved to dismiss each of the Named Plaintiffs in this action for failure to exhaust. Defendant claims that the grievance procedure was available to each Plaintiff. Plaintiffs, however, have provided evidence that suggests the procedure was not truly available. See Pl. Baxley’s Resp. 9–19.
1. Defendant’s Arguments Regarding Failure to Exhaust a) Baxley
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According to Defendant, Plaintiff Baxley filed 46 grievances on jail kiosks and 11 handwritten grievances during his time in the regional jails. Def.’s Mem. Supp. (Baxley) 10. She claims that none of the grievances filed pertained to Baxley’s requests for relief in this case. Id. She also asserts that his use of the grievance system for other matters demonstrates that the grievance process was “available” to him. Id.
b) Reed Defendant concedes that Plaintiff Reed filed grievances relating to her diabetes, medications, and clothing issues, but claims that Reed failed to exhaust her administrative remedies because she did not appeal any of the grievances. Def.’s Mem. Supp. (Reed) 9, ECF No. 268. Defendant suggests the process was available to Reed because she viewed the Handbook on the kiosk, “at least once.” Id. at 10.
c) Edmondson Defendant argues that Plaintiff Edmondson filed approximately 119 grievances, but that he did not appropriately appeal them. Def.’s Mem. Supp. (Edmondson) 9–10, ECF No. 270 (citing Edmondson Dep. 12, ECF No. 292-2). According to the Defendant, Edmondson’s deposition testimony revealed that he was “aware of the ‘appeal button’” and knew what the word “appeal” meant, therefore making the process was available to him. Id. at 10.
d) Spiker Defendant says Spiker failed to file any grievances related to his medical care or his disability before this suit began, even though he filed what she considers to be an unrelated grievance. Def.’s Mem. Supp. (Spiker) 9, ECF No. 272. Defendant further states that Spiker did not appeal any grievances, even though he admitted he was aware of the appeal process. Id. (citing Spiker Dep. 56, ECF No. 271-3). Finally, she argues that the process was available to Spiker
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because he was shown the kiosk and the Handbook, which provides the method for exhaustion, at orientation. Id.
e) Wells-Wright Defendant asserts that Plaintiff Wells-Wright filed at least 21 grievances but that she never appealed any of them. Def.’s Mem. Supp. (Wells-Wright) 9, ECF No. 274. Defendant also notes that Wells-Wright admitted she knew about the Handbook, including its grievance instructions, and that she “understood how to file an appeal.” Id. (citing Wells-Wright Dep. 54, 58, ECF No. 273-1).
f) Hall Defendant claims that Hall did not file any grievances related to this case. Def.’s Mem. Supp. (Hall) 9, ECF No. 278. Additionally, Hall admitted he had a “‘general idea’ that he could do an inquiry or grievance using the kiosk system.” Id. (citing Hall Dep. 39–40, ECF No. 277-2). Defendant also provided evidence that Hall viewed the Inmate Handbook at least once. Id. (citing Kiosk Log, ECF No. 277-4).
2. Plaintiffs’ Arguments Regarding Exhaustion: General Unavailability Plaintiffs argue that the process described by the Defendant in her Motions for Summary Judgment and in the WVDCR’s Inmate Handbook is not the actual process the Defendant expects inmates to follow. The “on the books” procedure requires inmates to request a written form, fill it out, and give it to a jail personnel who will transmit it to an “Administrator.” See Pl. Baxley’s Resp. 11. In reality, there is no one with the title of “Administrator,” and inmate grievances must be completed on electronic kiosks. Id. The written procedure further indicates that inmates will be given an opportunity to be heard before a decision is made regarding the grievance. Plaintiffs maintain that even when inmates are taught, or are otherwise able to deduce, the “correct”
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procedure for filing a grievance, no such opportunity to be heard is provided. Id. Moreover, they note that the Defendant failed to comply with WVDCR’s own grievance timeline, which guarantees that an inmate will receive a written decision within 72 hours of filing a grievance (as 48 hours are permitted for investigation, plus an additional 24 hours for the “Administrator” to make a decision). Id. at 11–12. Additionally, the procedure specifically states that the inmate will be told the reasons for the actions taken and the “procedures for appeal of the decision.” Id. at 12. Plaintiffs declare that neither occurs. Id. Finally, Plaintiffs argue that the grievance procedure is “not understandable by anyone, let alone inmates.” Id.16
3. Plaintiffs’ Arguments Regarding Exhaustion: Unavailability as to Each Named Plaintiff a) Baxley
Baxley testified that he was not informed about the grievance process when he was admitted to Western Regional. Baxley Dep. 69, ECF No. 302-16.17 When questioned about his familiarity with the grievance process, Baxley attested on May 29, 2020, that he only “recently” learned how to use it. Id. at 43. Baxley further testified that when he did file requests and grievances, he had others help him and that he was not aware of the appeals process. Id. at 45–46, 54–55, 62–64, 65–70. When questioned about whether he read the handbook, he insisted that he has “a reading disorder and spelling disorder.” Id. at 71.
Baxley also testified that the kiosk system was rarely available to him when he was in segregation. Id. at 45–46, 69 (testifying that there was only one “hole” with a kiosk in it and that

16 To this end, Plaintiffs cited conflicting testimony of jail employees. See, e.g., Straughan Dep. 39, ECF No. 302-5

(testifying that inmates can only have “so many” grievances open and that they have to “empty them out” to use the

grievance procedure); Wood Dep. 63, ECF No. 302-26 (inmates “can files as many grievances and have as many open

grievances as they want.”).

17

Q. Okay. You don’t think you ever read anything -- you didn’t go through any orientation in August

of ’18 when you came in about the kiosks.

A. No.

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kiosks were turned off when he was in segregation). When counsel for Defendant asked him about the availability of paper grievances while he was in segregation, Baxley stated that corrections staff would simply throw the forms away. Id. at 49–50.
b) Reed Plaintiff Reed insists that she has intellectual disabilities and has trouble reading and writing. Pl. Reed’s Resp. 4. She testified that she did not know how to file a grievance or what the word “appeal” means. Reed Dep. 74, 133–34, ECF No. 302-17.18 Reed also testified that while she had others help her file grievances at times, she often verbally told medical staff her complaints. See id. at 78, 80, 134.
c) Edmondson Plaintiff Edmondson claims that in addition to filing grievances, he “attempted to appeal some, but received no instruction on the appeal process.” Pl. Edmondson’s Resp. 3–4, ECF No. 305. During his deposition, he agreed that he could read the word “appeal” and that he knew what it meant, but he said that nothing happened when he pressed the appeal button on the kiosk. Edmondson Dep. 102, ECF No. 302-18. Additionally, Edmondson claims that his grievance history shows that some grievances were closed by someone else, rendering them unappealable. Pl. Edmondson’s Resp. 10 (citing Edmondson Grievances 8, 21, 23, ECF No. 269-3).
d) Spiker Plaintiff Spiker maintains that he did not have access to the kiosks in segregation (the first week he was incarcerated), and that even when he had access to a kiosk, he was not taught how to grieve. Pl. Spiker’s Resp. 8–9. Additionally, although Defendant claims that Spiker did not file
18 Defendant attempts to rebut Reed’s claims of illiteracy by noting that she was able to read the word “appeal” during her deposition. Def.’s Mem. Supp. (Reed) 10, ECF No. 268. Defendant does not address Reed’s claim that she does not know what the word meant.
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any grievance related to his claims against the Defendant, the allegedly unrelated grievance specifically stated that Spiker was having “mental health issues” and needed help. Id. at 17; Spiker Grievances 2, ECF No. 271-2.
While he did not appeal that grievance, the records indicate that the grievance was closed by Superintendent Lanham a mere two seconds after it was accepted. Spiker Grievances 2. Spiker also suggests that “[e]ven if [he] had been given the opportunity to appeal his grievance, the appeal would have been to the same person who initially responded, the Superintendent, such that the original grievance served ‘as his appeal that was acted upon.’” Pl. Spiker’s Resp. 12 (quoting Ray v. Attao, No. 1:18-CV-00017, 2018 WL 6837746, at *8 (D. N. Mar. I. Dec. 31, 2018)).
e) Wells-Wright Plaintiff Wells-Wright states that there is sufficient evidence to suggest she “strived to learn the grievance process.” Pl. Wells-Wright’s Resp. 4. Her grievance history shows that she sought instructions on how to appeal from the kiosk when she was unable to figure it out on her own. See Wells-Wright Grievances, ECF No. 273-2. Grievances filed by Well-Wright include the following: I AM FILING AN APPEAL GRIEVANCE IN RE: LACK OF MEDICAL CARE. WHAT IS THE PROPER PROCEEDURE? Id. at 14. HAVE ASKED FOR GRIEVENCE APPEAL FORMS BUT HAVE RECEIVED NONE. I HAVE FIVE DAYS TO APPEAL AND IT HAS ALREADY BEEN 4 DAYS. IT MUST BE A HANDWRITTEN APPEAL TO THE CHIEF OF OPERATIONS. I'M INDIGENT AND I'M SUPPOSED TO BE PROVIDED WITH THE FORM, PEN, ENVELOPE AND POSTAGE ACCORDING TO THE INMATE HANDBOOK…. Id. at 17. I'VE ASK THE ROVERS REPEATEDLY FOR GRIEVENCE APPEAL FORMS AND I'M YET TO GET ANYTHING.
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Id. at 18. Wells-Wright was eventually told “You can write a grievance right here for it to be reviewed by the appropriate staff.” Id. at 18. Based on this instruction, Wells-Wright states that she continued to file grievances rather than appeals. Pl. Wells-Wright’s Resp. 5.
f) Hall Plaintiff Hall claims that he was never taught how to file grievances and that he did not have an opportunity to file them while he was in holding. Pl. Hall’s Resp. 7. Regarding Defendant’s claim that he viewed the Handbook, Hall states that he did not truly view the Handbook but was instead told to “skip through the handbook and go straight to the video so you can get done with it.” Id.; Hall Dep. 20, ECF No. 302-20. Additionally, although he did not file grievances, he testified that that he repeatedly requested to see a psychiatrist. Pl. Hall’s Resp. 7 (citing Hall Dep. 16–17). Eventually, another inmate showed him how to file something on the kiosk system, and he filed an “inquiry” stating, “I need to see the psyc doctor.” Id. at 2, 8 (quoting Hall Inquiry, ECF No. 302-23). In response, he was told to fill out a nurse sick call. Id. He maintains that there was no option to appeal. Id. 10. Finally, Hall also testified that he did not know the difference between an inquiry and a grievance, and that he did not know about the appeals process. Hall Dep. 20–21. iv. Analysis Even assuming that the Defendant has made a threshold showing of failure to exhaust and that the Plaintiffs bear the burden of showing the process was “unavailable,” see Creel, 2017 WL 4004579, at *4, Plaintiffs have met that burden. The Court is not persuaded by Defendant’s argument that the Plaintiffs should, or even could, have complied with the grievance procedure laid out in the Inmate Handbook. See Ross, 136 S. Ct. at 1859 (“When rules are so confusing that no reasonable prisoner can use them, then they’re no longer available.”) (internal quotation marks
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and citations omitted). There is simply no way that an “ordinary prisoner can discern or navigate” the Defendant’s
grievance process. See id. at 1850. Evidence presented by Plaintiffs establishes that the system is not navigable. Plaintiffs testified that they were not instructed on how to grieve. Instead, the Defendant expected them to learn how to use the grievance procedure using the Inmate Handbook.19 If the inmates were able to access and read the Handbook, however, they would learn about a process that is entirely different from the one that the Defendant expected them to follow. This, on its own, is likely sufficient to make the process “unavailable” under Ross. See Ray v. Attao, No. 1:18-CV-00017, 2018 WL 6837746 (D. N. Mar. I. Dec. 31, 2018) (finding process unavailable when it referenced officials that did not exist, there was no evidence inmates were given instructions on how to use the procedure, and the appellate procedure was not explained to inmates); Albino v. Baca, 747 F.3d 1162, 1175–76 (9th Cir. 2014) (finding administrative remedies not available when plaintiff testified he was not informed of complaint process, did not have access to manual that described the process, and frequently sought help from staff).
Still, additional barriers existed. Although WVDCR’s procedure ostensibly requires inmates to appeal denials, 20 the written procedure specifically states that inmates will be provided with the “procedures for appeal.” Inmate Handbook 6. Despite this, no such instructions were
19 For example, in Defendant’s Memorandum of Law in Support of Motion for Summary Judgment as to Heather Reed, Defendant implies that the grievance process is available because it is “outlined in the Inmate Handbook,” and suggests that the process cannot be considered “unavailable” because Reed accessed the Handbook “at least once.” Def.’s Mem. Supp. (Reed) 10. 20 The Court does not see how the procedure as written could be read to require the first or second appeals. The written procedure plainly states that inmates may appeal unfavorable decisions:
An inmate, dissatisfied with the Administrator’s decision, may appeal such decision to the Chief of Operations. … Within five (5) days of receipt of the Level Two Decision, an inmate may request a review of the office of the Executive Director. Inmate Handbook 6 (emphasis added).
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provided.21 See Williams v. Marshall, 319 F. App'x 764, 768 (11th Cir. 2008) (finding process
may not be available when the grievance form did not explain exhaustion process and when it was
not clear that plaintiff was aware he “could or should appeal” an unfavorable decision).
The unavailability of the process is supported by Plaintiffs’ claims that they were instructed not to file grievances,22 were told their concerns would be taken care without use of the grievance procedure,23 or were explicitly told that their concerns were non-grievable.24 Moreover, the record
shows that grievances were regularly closed by someone other than the Plaintiff, apparently leaving them unappealable.25
It is unlikely that any inmate or detainee could have followed the grievance procedure to the Defendant’s satisfaction. So unlikely in fact, that of the approximately 5,034 grievances26 filed
on the electronic kiosks, Plaintiffs claim that during the discovery process Defendant was only
able to produce ten separate appeals. Pl. Baxley Resp. 15. Significantly, two of these were appealed
through counsel, two were handwritten letters claiming that kiosks and paper grievance forms were
unavailable, two were from inmates at prisons (not the regional jails), and the remaining four were
(1) an appeal of a disciplinary action, (2) a Prison Rape Elimination Act complaint, (3) an
administrative segregation appeal, and (4) a letter requesting access to the law library. Id. The
Court finds it doubtful that none of the inmates who filed the remaining 5,024 grievances would
21 The Court is particularly surprised that the Defendant alleged Wells-Wright failed to exhaust her remedies based on a failure to appeal, when the record indicates she repeatedly asked for instructions and/or forms to effectuate an appeal. 22 See, e.g., Edmondson Grievances 18, 23, 25, 28 (Edmondson told to file medical grievance as “sick call” or “inquiry”). 23 Reed testified that when she told medical staff that she could not read or spell, they said “Okay. I’ve gotcha. You don’t have to do it. We’ll put it in for you.” Reed Dep. 48. 24 When Well-Wright filed a medical grievance, she was told “You need to enter this as a sick call not a grievance.” Wells-Wright Grievances, 20. 25 See, e.g., Reed Grievances, 2, 3, 4, 5, 6, 7, 8, 10 (examples of grievances filed by Plaintiff Reed that were closed by others). The Court notes that this occurred with grievances filed by multiple Plaintiffs and has only cited to a sampling from Plaintiff Reed’s grievances. 26 According to an interrogatory answered by the Defendant. Def.’s Answer Third Set of Interrog. 4–5, ECF No. 26413.
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have wanted to file an appeal. It seems much more likely that they just were not aware the process existed or were discouraged from appealing. As such, the Court finds the Defendant’s exhaustion procedure was simply unavailable. See Dunn v. Dunn, 219 F. Supp. 3d 1100, 1115–17 (M.D. Ala. 2016) (finding administrative procedure was unavailable when the written procedure was unclear and when “even those who run it cannot manage to accurately and consistently describe how it works.”). Consequently, the Court denies the Defendant’s motions for summary judgment against the Named Plaintiffs based on failure to exhaust under the PLRA. C. Failure to State a Claim – Section 1983 Claim of Deliberate Indifference
Our “Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citations and quotation marks omitted). Undeniably, incarcerated persons have no choice but to surrender “[m]any of the liberties and privileges enjoyed by other citizens.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003). Still, when individuals are jailed by their government, they must rely on it to meet their basic needs.
The Eighth Amendment of the United States Constitution prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. This “Amendment proscribes more than physically barbarous punishments.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). The cruelty prohibited by the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958); Estelle, 429 U.S. at 102.
While the Eighth Amendment provides that convicted persons may not be subjected to cruel and unusual punishment, a “detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Pretrial detainees
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have not been convicted, yet so long as sufficient cause of their arrest and detention has been established, they may be detained and subjected “to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.” Id. at 536–37.
Since Bell, the Supreme Court has not provided much guidance as to the standards that govern the conditions of pretrial detention beyond noting that due process requires arrestees be given protections “at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Accordingly, since the early 1990s, this Circuit has held that the Eighth Amendment’s deliberate indifference standard also applies to inadequate medical care claims brought by pretrial detainees under the due process clause of the Fourteenth Amendment. Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992).
More recently, however, the Supreme Court has “cast doubt on the viability of this rigorous test as applied to those not yet tried or convicted of any crime.” Seth v. McDonough, 461 F. Supp. 3d 242, 259 (D. Md. 2020). In Kingsley v. Hendrickson, the Court decided an excessive force case brought under the Fourteenth Amendment. 576 U.S. 389 (2015). It held that the plaintiff detainee did not have to show the defendant officer acted with subjective intent. Id. at 391. The Court cited Bell for the proposition that pretrial detainees can prevail on Due Process claims “by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. at 398.
Plaintiffs in this case argue that Kingsley commands this Court to apply only the objective prong of the deliberate indifference analysis to the claims of the Named Plaintiffs who are detainees. See Pl. Baxley’s Resp. 22. Defendant, on the other hand, submits that Hill is still the Fourth Circuit standard for inadequate medical care claims. Def.’s Reply (Baxley) 12.
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The Court recognizes that many other courts have analyzed Kingsley and its application to deliberate indifference claims brought by pretrial detainees and come to differing conclusions. See Seth, 461 F. Supp. 3d at 259–60; compare Miranda v. Cty. of Lake, 900 F.3d 335, 351–52 (7th Cir. 2018) (“[M]edical-care claims brought by pretrial detainees under the Fourteenth Amendment are subject only to the objective unreasonableness inquiry identified in Kingsley.”), and Gordon v. Cty. of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018) (“While Kingsley did not necessarily answer the broader question of whether the objective standard applies to all Section 1983 claims brought under the Fourteenth Amendment against individual defendants, logic dictates extending the objective deliberative indifference standard . . . to medical care claims.”) (internal quotation marks and citations omitted), with Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018) (finding Kingsley does not change the Eighth Circuit’s standard for deliberate indifference), and Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (noting that Kingsley does not abrogate or conflict with the Eleventh Circuit’s deliberate indifference standard).
Bell and Kingsley surely emphasize the notion that the “Eighth Amendment and Due Process analyses are not coextensive.” Miranda, 900 F.3d at 352. Logic indeed suggests that Kingsley’s reasoning extends to deliberate indifference claims brought by pretrial detainees. See Gordon, 888 F.3d at 1124. Nevertheless, the Court finds that it need not make that determination today, as the Plaintiffs have sufficiently stated a claim under the Eighth Amendment deliberate indifference standard. Accordingly, the following analysis applies the Eighth Amendment standard to all of the Plaintiffs’ claims.
The Eighth Amendment of the United States Constitution is violated when a corrections official is deliberately indifferent “to a substantial risk of serious harm to an inmate.” Farmer, 511
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U.S. at 828. To state a Section 1983 claim for deliberate indifference under this Amendment, a plaintiff must satisfy a two-prong test showing (1) the injury or deprivation was “objectively, ‘sufficiently serious’” and (2) the official has acted with “‘deliberate indifference’ to inmate health or safety.” Id. at 834. “Deliberate indifference” under the Eighth Amendment “require[es] a showing that the official was subjectively aware of the risk” of serious harm. Id. at 829. Courts often refer to these as the “objective” and “subjective” prongs of deliberate indifference. See, e.g., Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016).
In this case, the Defendant asserts three different arguments suggesting Plaintiffs have failed to state a claim for deliberate indifference: (1) Plaintiffs have failed to satisfy the objective prong of the deliberate indifference analysis; (2) Plaintiffs have failed to satisfy the subjective prong of the analysis; and (3) WVDCR’s accreditation by the National Commission on Correctional Health Care (“NCCHC”) precludes a finding of deliberate indifference. See, e.g., Def.’s Mot. Summ. J. (Baxley) 3. Each of these arguments are addressed in turn.
i. Objective Prong Under the objective prong, a deprivation is sufficiently serious if it is “extreme.” Scinto,
841 F.3d at 225 (quoting Farmer, 511 U.S. at 834). A deprivation is extreme if it presents “a serious or significant physical or emotional injury resulting from the challenged conditions,” or it “demonstrate[s] a substantial risk of such serious harm resulting from the prisoner’s exposure to the challenged conditions.” De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation marks and citations omitted). In inadequate medical care cases, the Fourth Circuit has “require[d] plaintiffs to demonstrate officials’ deliberate indifference to a ‘serious’ medical need that has either ‘been diagnosed by a physician as mandating treatment or . . . is so obvious that
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even a lay person would easily recognize the necessity for a doctor’s attention.’” Scinto, 841 F.3d at 225 (quoting Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)).
Defendant asserts that each of the Named Plaintiffs have failed to produce sufficient evidence to support their claims of deliberate indifference. However, because Plaintiffs challenge “systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and ill prisoners . . . to ‘substantial risk of serious harm,’” the Court need not consider whether each of the individual Plaintiffs’ claims result in a constitutional violation. Brown v. Plata, 563 U.S. 493, 505 n.3 (2011) (“Because plaintiffs do not base their case on deficiencies in care provided on any one occasion, this Court has no occasion to consider whether these instances of delay—or any other particular deficiency in medical care complained of by the plaintiffs—would violate the Constitution under Estelle v. Gamble if considered in isolation.”) (internal citation omitted).
Consistent with Brown, courts across the country have recognized that “[i]n institutional level challenges to prison health care[,] . . . systemic deficiencies can provide the basis for a finding of deliberate indifference.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991); see, e.g., Postawko v. Mo. Dep't of Corr., No. 2:16-CV-04219-NKL, 2017 WL 3185155 (W.D. Mo. July 26, 2017), aff'd, 910 F.3d 1030 (8th Cir. 2018); Dunn v. Dunn, 219 F. Supp. 3d 1100, 1123 (M.D. Ala. 2016). In cases challenging the policies of jails and prisons, “[d]eliberate indifference to inmates’ health needs may be shown, for example, by proving that there are ‘such systemic and gross deficiencies in staffing, facilities, equipment or procedures that the inmate population is effectively denied access to adequate medical care.’” Harris, 941 F.2d at 1505 (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)).
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Plaintiffs challenging systemic deficiencies need to show “they have been subjected to the harmful policies and practices at issue, not (necessarily) that they have already been harmed by these policies and practices.” Dunn, 219 F. Supp. 3d at 1123; Parson v. Ryan, 289 F.R.D. 513, 521 (D. Ariz. 2013), aff’d 754 F.3d 657 (9th Cir. 2014) (holding that a plaintiff seeking injunctive relief “need not wait until he suffers an actual injury because the constitutional injury is the exposure to the risk of harm.”) (emphasis in original).
It is well established that “a prisoner’s mere preference for a different treatment over the one that was provided is insufficient to establish an Eighth Amendment violation.” Dunn, 219 F. Supp. 3d at 1124. But Plaintiffs have provided much more. “Repeated examples of delayed or denied medical care may indicate a deliberate indifference by prison authorities to the suffering that results.” Rogers v. Evans, 792 F.2d 1052, 1059 (11th Cir. 1986).
All of the Named Plaintiffs claim they have serious medical and/or mental health diagnoses that they reported when they arrived at the relevant regional jail. Each of the Named Plaintiffs reports that the Defendant failed to provide necessary medical treatment in a timely manner. Notably, all of the Plaintiffs claim that jails failed to provide the Plaintiffs with necessary medication, for periods of time ranging from days to months. Even if it were the case that each of the Named Plaintiffs could not establish deliberate indifference on their own, their evidence supports a viable claim that there are systemic deficiencies in the mental and medical health care provided to the inmates and detainees in the regional jails.
Additionally, although the Court recognizes that Defendant contests some of the Plaintiffs’ claims and insist that the jails provided Plaintiffs with timely medical treatment, viewing the facts in the light most favorable to the Plaintiffs, the Court finds Plaintiffs produced sufficient evidence such that a question of material fact exists regarding the objective factor of the deliberate
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indifference analysis. 27 ii. Subjective Prong The subjective prong of deliberate indifference under the Eighth Amendment requires
plaintiffs to make a showing of something greater than negligence, but it does not require “acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835. This Circuit has stated that the subjective prong “requires that a prison official actually know of and disregard an objectively serious condition, medical need, or risk of harm.” De’Lonta, 330 F.3d at 634; Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995) (“[D]eliberate indifference in this context lies somewhere between negligence and purpose or knowledge: namely, recklessness of the subjective type used in criminal law.”). The requisite state of mind can be established by showing that the official was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he … draw[s] the inference.” Farmer, 511 U.S. at 837; Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990) (“Failure to respond to an inmate’s known medical needs raises an inference that there was deliberate indifference those needs.”).
The subjective prong is also satisfied if plaintiffs can establish “that a substantial risk of [serious harm] was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official . . . had been exposed to information concerning the risk and thus must have known about it.” Scinto, 841 F.3d at 226 (quoting Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)).
27 The Plaintiffs’ individual claims are supported by the reports of their experts, Dr. Cheryl Wills and Dr. Homer Venters, who both made conclusions that there were substantial deficiencies in the care provided by the Defendant. Wills Rep. 3–4, ECF No. 264-3; Venters Rep. 4–5, ECF No. 264-2.
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Plaintiffs claim that Defendant’s lack of oversight over the medical and mental healthcare providers has resulted “in system-wide constitutionally deficient medical and mental health care for inmates in DCR’s jails.” Pls.’ Mem. Supp. Mot. Class Cert. 11, ECF No. 279. Defendant urges the Court to find that she is entitled to avoid liability because she herself was not the doctor providing care to the inmates in the regional jails. See Def.’s Mem. Supp. (Baxley) 14 (citing Greene v. Ballard, No. 2:17-CV-02897, 2020 WL 3055459 (S.D.W. Va. Feb. 25, 2020), report and recommendation adopted, No. 2:17-CV-02897, 2020 WL 1482568 (S.D.W. Va. Mar. 27, 2020), appeal dismissed, 823 F. App'x 204 (4th Cir. 2020)).
While Defendant’s argument may have been persuasive if this case was about the individual medical care of the Plaintiffs, here the alleged violation is the Defendant’s policy or practice of providing deficient medical and mental health care to persons housed in the regional jails. The relevant question is not whether Defendant Jividen was subjectively aware of the individual medical decisions made regarding each Plaintiff, but whether she was subjectively aware of WVDCR’s healthcare practices and the substantial risk of harm those practices pose to inmates. Subjective awareness can be inferred via circumstantial evidence. See Farmer, 511 U.S. at 843.
Lack of action in the face of a substantial risk of harm can evince a cognizant disregard for the risk of harm to the health and wellness of inmates. See Madrid v. Gomex, 889 F. Supp. 1146, 1160 (N.D. Cal. 1995). Plaintiffs have provided sufficient evidence to raise a genuine dispute of material fact regarding whether Defendant was aware of and willfully disregarded “an objectively serious . . . risk of harm” to the plaintiff class. De’Lonta, 330 F.3d at 634.
Despite Defendant’s claim that she has “no role in the delivery of health care in the Regional Jails,” see Def.’s Mem. Supp. (Wells-Wright) 13, it is well established that a government
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is constitutionally obligated to provide medical care for the persons it incarcerates or detains. See Estelle, 429 U.S. at 103 (“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.”); Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (holding that prison officials have a constitutional duty to maintain “humane conditions of confinement, including the provision of adequate medical care and … ‘reasonable measures to guarantee the safety of the inmates.’”).28 The fact that WVDCR contracts out medical care does not permit Defendant Jividen to assume she has met her constitutional duty.
In the many memoranda filed in this case, the Plaintiffs have provided evidence that could support a finding that Defendant abdicated her duty to provide adequate medical care and in doing so has willfully turned a blind eye to evidence that WVDCR’s current health care policies leave inmates at risk of harm. See, e.g., Hissom Dep. 52, ECF No. 264-4 (WVDCR does not conduct site inspections); Hissom Dep. 53 (WVDCR does not review contractors’ manuals and protocol); Hissom Dep. 54 (WVDCR does not receive utilization review for regional jails); Hissom Dep. 59 (WVDCR does not regularly ask for statistical summaries); Hissom Dep. 105 (WVDCR does not review receiving screenings); Hissom Dep. 120 (WVDCR does not review licensure of individual contracted staff); Hissom Dep. 130 (WVDCR does not receive or ask for reports regarding timely completion of health assessments); Gray29 Dep. 54, ECF No. 264-8 (Wexford does not share audits or chart reviews with WVDCR); Gray Dep. 56–57 (WVDCR does not formally monitor Wexford); Gray Dep. 76 (Wexford does not provide formal reports to WVDCR’s Director of Correctional Health Care); Weber30 Dep. 19, ECF No. 264-6 (WVDCR has not reviewed PrimeCare’s services
28 This duty is further supported by the deposition of the Director of Correctional Healthcare for the Defendant, Debbie Hissom, who testified that as Commissioner, Defendant Jividen must sign off on any changes to the health care policies in the jail system. Hissom Dep. 18, ECF No. 263-4. 29 James Gray is a Health Service Administrator for Wexford Health Services, Inc. 30 Thomas Weber is the Chief Executive Officer of PrimeCare Medical.
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to make sure it is “meeting or exceeding the standard of care” required under its contract); Weber Dep. 115 (WVDCR does not review personnel files); Searls31 Dep. 142, ECF No. 265-5 (Superintendent of Western Regional Jail does not track what issues are raised in grievances).
Accordingly, Plaintiffs have provided sufficient evidence to support a finding that Defendant was subjectively aware of the risk of harm WVDCR’s policies and procedures pose to jail inmates.
iii. National Commission on Correctional Health Care Certification Defendant urges the Court to “rule as a matter of law that meeting NCCHC’s standards are
substantial evidence of compliance with constitutional standards of deliberate indifference.” Def.’s Mem. Supp. (Baxley) 15. Defendant testified that both of WVDCR’s medical contractors are required to maintain accreditation by the NCCHC. Jividen Aff. ¶ 5, ECF No. 263-8. She further stated that all nine facilities serviced by PrimeCare “have met NCCHC standards,” and that the tenth jail, Northern Regional, “received contingent approval from NCCHC.” Id. ¶¶ 6–7. She suggests that this accreditation, in addition to the evidence presented in this case, should lead the Court to dismiss the deliberate indifference claims. Def.’s Mem. Supp. (Baxley) 15–16; Def.’s Reply (Baxley) 18–19.
Defendant relies heavily upon Grayson v. Peed, in which the Fourth Circuit found that summary judgment was appropriate in a deliberate indifference case. See Def.’s Reply (Baxley) 19. To support its finding that a sheriff could not be held liable for the possible constitutional violation of his employees, the Grayson Court noted that the plaintiff’s own experts had “conceded” that the Sheriff’s policies were in compliance with standards set forth by the Virginia Board of Corrections and the American Correctional Association. Grayson v. Peed, 195 F.3d 692,
31 Shelby Searls is the Superintendent of Western Regional Jail.
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697 (4th Cir. 1999). While this case establishes that accreditation may be considered by a court as a factor in favor of summary judgment, it hardly supports Defendant’s claim that “NCCHC accreditation is clear, uncontradicted evidence that Commissioner Jividen had no reasonable basis to doubt the efficacy and adequacy of the policies at issue or the medical treatment of the inmates.” Def.’s Reply (Baxley) 17.
NCCHC accreditation is simply not a sufficient basis upon which the Court can grant summary judgment in this case, particularly where it is indisputable that first, not all of the jails were actually fully accredited by NCCHC32 and second, despite the accreditation status of the jails, Defendant admits the jails are not in 100 percent compliance with NCCHC standards. Jividen Aff. ¶¶ 6–7.
NCCHC reports show that, despite accreditation, the Defendant’s jails did not “fully meet” standards that are relevant in the instant case. See, e.g., NCCHC Rep. 14–16, ECF No. 302-11 (showing Western Regional Jail “partially met” compliance standard in the following categories (1) reviewing receiving screening results within 14 days and (2) ensuring that all inmates receive an initial health screening no later than 14 days after admission); NCCHC Rep. 23 (same score for Northern Regional Jail); NCCHC Rep. 26 (finding Northern Regional Jail was only partially compliant with performing mental health screenings within 14 days); NCCHC Rep. 29 (finding Northern Regional only “partially met” compliance indicator that face-to-face encounters for a health care request be conducted within 24 hours).
The Court declines to wholly cede to NCCHC’s judgment in this case. As Plaintiffs argue, NCCHC infrequently visits Defendant’s jails, and when it does, it pre-announces its visit and samples only a small number of cases. See, e.g., NCCHC Rep., ECF No. 263-8 (NCCHC
32 Defendant Jividen testified that while the nine health care facilities operated by PrimeCare met NCCHC standards, Northern Regional Jail only had “contingent approval” from NCCHC. Jividen Aff. ¶¶ 6–7.
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Accreditation Report for one jail indicating that they reviewed 14 health records and interviewed only 11 inmates). The Court does not suggest that NCCHC accreditation is not evidence that the Defendant may present in her defense at trial. Instead, the Court finds that a material question of fact remains as to whether Defendant Jividen was deliberately indifferent in this case.
iv. Conclusion Regarding Deliberate Indifference Viewing the facts in the light most favorable to the Plaintiffs, the Court finds that a
reasonable factfinder could find that the Defendant’s actions (and omissions) amounted to deliberate indifference toward the mental and medical health care needs of inmates at West Virginia Regional Jails. The Court denies the Defendant’s Motions for Summary Judgment on this basis. D. Failure to State a Claim – Americans with Disabilities Act33
Title II of the Americans with Disabilities Act provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Under the ADA, a “public entity” includes “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(2). Additionally, a “qualified individual with a disability” is a defined as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42
33 Defendant raised sovereign immunity as a defense in each of the motions for summary judgment. See Def.’s Mot. Summ. J. (Baxley) 16. Because Plaintiffs have dismissed WVDCR from the case and because this class action seeks only injunctive relief, the Court finds that the defense is not applicable. See Ex parte Young, 209 U.S. 123 (1908) (holding Eleventh Amendment does not bar suits against state officials for injunctive relief).
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U.S.C. § 12131(2). To establish a prima facie case under this Title, the Fourth Circuit has held that a plaintiff
must establish: (1) he or she has a disability; (2) he or she is “otherwise qualified to receive the benefits of a public service, program, or activity;” and (3) he or she was “denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of their disability.” Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 502–03 (4th Cir. 2016) (citing Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005)).
In addition to prohibiting intentional discrimination based on disability, the ADA also imposes an affirmative obligation on public entities to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i); Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 749 (2017); Constantine, 411 F.3d at 488. This obligation, however, is not without limits. See Tennessee v. Lane, 541 U.S. 509, 531–32 (2004) Title II “requires only ‘reasonable modifications’ that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service.” Id.
State correctional facilities are “public entities” under Title II of the ADA. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“State prisons fall squarely within the statutory definition of ‘public entity,’ which includes ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’” (quoting 42 U.S.C. § 12131(2)).34 Nonetheless, courts have repeatedly found that the “a prisoner may not state a claim under the
34 The supporting regulations to the ADA make clear that correctional facilities have an affirmative duty to ensure that inmates and detainees are not “subjected to discrimination.” 28 C.F.R. § 35.152(b)(1).
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ADA for a lack of medical treatment.” Mondowney v. Balt. Cty. Det. Ctr., No. CV ELH-17-1538, 2019 WL 3239003, at *21 (D. Md. July 18, 2019); Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) (“[T]he Act would not be violated by a prison’s simply failing to attend to the medical needs of its disabled prisoners.”).
Plaintiffs claim that their ADA claim rests not on intentional discrimination but upon a failure to provide reasonable accommodations to the Plaintiffs, resulting in their exclusion from jail services, programs, and activities. See Pl. Baxley’s Resp. 29.
The Court finds that only one of the Named Plaintiffs in this action has plead a sufficient claim for failure to accommodate under the ADA. To explain this finding, the Court will discuss Plaintiffs’ ADA claims in three categories: (1) Plaintiffs whose ADA assertions amount to inadequate medical care claims; (2) Plaintiffs who asserted failure to accommodate claims regarding the grievance process; and (3) Plaintiffs who sufficiently stated claims under the ADA.
i. Inadequate Medical Care Each of the Named Plaintiffs complained that WVDCR denied providing them with
reasonable accommodations, which caused them to be excluded from or denied access to WVDCR’s “programs, services, and activities.” See Pl. Baxley’s Resp. 30; Pl. Spiker’s Resp. 27– 38; Pl. Reed’s Resp. 19–20; Pl. Edmonson’s Resp. 19; Pl. Wells-Wright’s Resp. 18–20; Pl. Hall’s Resp. 20.35
35 Notably, the Plaintiffs largely fail to articulate which programs, services, and activities the Plaintiffs were denied access to, which is distinguishable from other cases where Courts found viable class action “failure to accommodate” claims under the ADA in the correctional context. See Jarboe v. Md. Dep’t of Pub. Safety & Corr. Servs., No. CIV.A. ELH-12-572, 2013 WL 1010357 (D. Md. Mar. 13, 2013) (denying summary judgment where deaf and hearing impaired inmates claimed they were denied accommodations that would allow them to communicate with others); Phipps v. Sheriff of Cook Cty., 681 F. Supp. 2d, 899, 904 (N.D. Ill. 2009) (denying summary judgment when class of paralyzed detainees claimed they were denied the accommodation of wheelchair-accessible toilets, sinks, and showers); Pierce v. Cty. of Orange, 526 F.3d 1190, 1217–18 (9th Cir. 2008) (finding jails failed to accommodate disabled detainees by denying them physical access to wheelchair accessible toilets and sinks and excluding disabled inmates from rehabilitative and vocational opportunities).
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It appears to the Court, however, that it is the inadequate medical care underlying the Section 1983 deliberate indifference claim in Count I that is actually causing the Plaintiffs to be deprived of, or excluded from, jail services, programs, and activities. For example, Plaintiff Baxley states his “rights were violated under the ADA when he was placed on suicide watch and segregation, and thereby denied access to programs, services, and activities of jail life, as a result of being denied a reasonable modification for his disability, i.e., mental health treatment.” Pl. Baxley’s Resp. 30. Here, it was not Defendant’s “failure to accommodate” Baxley as a qualified individual with a disability under the ADA that denied him access to jail programs, services, and activities. Instead, it was Defendant’s alleged failure to provide adequate medical treatment that has caused Baxley’s mental condition to deteriorate, which led to him being placed in segregation and ultimately deprived him of the ability to participate in jail life. The Court fails to see the distinction between this claim and Plaintiffs’ claim of deliberate indifference.
The same holds true for assertions made by Plaintiffs Spiker, Reed, Edmondson, and Hall. See Pl. Spiker’s Resp. 17–28 (Spiker claims that he was denied the ability to participate in daily activities because he was not provided appropriate treatment for his mental illness and because he was placed on suicide watch); Pl. Reed’s Resp. 19 (Reed claims that she was denied access to “DCR’s services, programs, and activities” when she was placed on lock down after her mental illnesses went untreated and that she was similarly denied access to “normal programs, services, and activities of jail life” because of WVDCR’s failure to properly treat her diabetes); Pl. Edmondson’s Resp. 19 (Edmondson claims that Defendant failed to provide him with a reasonable accommodation in the form of treatment for his chronic sinus infection causing him to “withdraw from activities and programs at NRJ”); Pl. Hall’s Resp. 19–20 (Hall claims that as a result of the Defendant’s failure to provide necessary medical treatments he “could not participate in daily
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activities”). The acts (or omissions) that harmed the Plaintiffs in each of these allegations were not failures to accommodate the individual Plaintiffs’ disabilities but the Defendant and WVDCR’s failure to appropriately treat their medical conditions.
Because the ADA cannot be used to assert a claim of inadequate medical care, see Mondowney, 2019 WL 3239003, at *21, Plaintiff Baxley, Spiker, Reed, Edmondson, and Hall’s broad assertions that Defendant’s failure to accommodate their medical and mental health care needs denied them access to jail services, programs, and activities fail.
ii. Failure to Accommodate & the Defendant’s Grievance Process In addition to the broader failure to accommodate allegations described above, Plaintiffs
Baxley and Reed do claim a more specific accommodation denial. They claim that they were denied modifications when they had to enlist the help of others to file grievances. Pl. Baxley’s Resp. 30; Pl. Reed’s Resp. 19. As a consequence of these alleged denials, they claim they were denied access to the Defendant’s grievance process. The Court is hesitant to find that Plaintiffs Baxley and Reed have presented sufficient evidence to state a claim of discrimination under the ADA for the three following reasons.
First, as a threshold issue, it is not clear to the Court that illiteracy is necessarily a protected disability under the ADA. While in E.E.O.C. v. Randstad, the Fourth Circuit recognized that in an employment context literacy requirements may be discriminatory because they are disadvantageous to individuals with learning disabilities, 685 F.3d 433, 444 (4th Cir. 2012), the inability to read is not necessarily tied to a disability. Whether an individual’s inability to read and write is a disability under the ADA would need to be determined on an individual basis.
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Second, even if Baxley and Reed’s inability to read is in fact due to a disability, the record does not reflect that Baxley36 or Reed37 informed the Defendant that they had such a disability or that they asked for an accommodation for the grievance process. While there may be times where an individual does not have to expressly ask for an accommodation, such an exception only applies where it is apparent that one is needed. See Cadena v. El Paso Cty., 946 F.3d 717, 723–24 (5th Cir. 2020) (“For this type of claim, a plaintiff must show that the entity knew of the disability and its consequential limitations, either because the plaintiff requested an accommodation or because the nature of the limitation was open and obvious.”) (citing Windham v. Harris Cty., Tex., 875 F.3d 229, 236 (5th Cir. 2017)). Without such a requirement, “it would be impossible for the provider to ascertain whether an accommodation is needed at all, much less identify an accommodation that would be reasonable under the circumstances.” Windham, 875 F.3d at 236; Hedberg v. Ind. Bell Tele. Co., 47 F.3d 928, 924 (7th Cir. 1995) (“The ADA does not require clairvoyance.”).
Finally, in the instant Order, the Court has found that the grievance process was unavailable at the time the Second Amended Class Action complaint was filed—even to those Plaintiffs who could read and write. Therefore, even if Baxley and Reed had informed the Defendant of a disability that hindered their ability to use the grievance system and were denied an
36 Although Baxley testified that he has a spelling and reading “problem,” see Pl. Baxley’s Resp. 20 (citing Baxley Dep. 65–66 (“I have a spelling problem, and I have a reading problem.”)), this testimony is not a sufficient basis for the Court to find that the Defendant or the WVDCR was aware of his problem. 37 Similarly, Reed claims that she has “difficulty reading and writing.” Pl. Reed’s Resp. 19 (citing Reed Dep. 11–12, 23, 103 (“. . . my IQ is really low, I can’t read or spell that much.”)). Additionally, an expert for the Plaintiffs states that “Heather Reed is well known to DCR based [on] more than a dozen admissions” and that the “DCR medical and mental health teams are familiar with her complex medical history that includes . . . [i]lliteracy . . . along with other intellectual limitations . . . .” Wills Rep. 10. Neither Reed’s statements in her deposition nor Dr. Wills’s conclusions are sufficient to impute knowledge to the Defendant in this case, without pleading a more specific basis upon which the Court could find the Defendant knew of this specific disability. See Shields v. Prince George’s Cty., No. GJH-151736, 2016 WL 4581327, at *10–11 (D. Md. Sept. 1, 2016) (granting motion to dismiss where plaintiff failed to allege a specific basis upon which the defendant should have been aware of the plaintiff’s disability).
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accommodation, the Court does not believe any accommodation would have made the system available or functional.
Accordingly, the Court finds that Baxley and Reed have not stated a claim that the Defendant violated the ADA by failing to provide accommodations that would have assisted them with the grievance process.
iii. Plaintiffs Pleading Sufficient ADA Failure to Accommodate Claim Plaintiff Donna Wells-Wright has adequately stated a claim under the ADA. As noted
above, a plaintiff can establish a prima facie case under Title II of the ADA by showing (1) she has a disability; (2) she is “otherwise qualified to receive the benefits of a public service, program, or activity”; and (3) she was “denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of their disability.” Nat'l Fed'n of the Blind, 813 F.3d at 502– 03. The third prong may be satisfied by showing the defendant failed to make reasonable accommodations when the qualified individual with a disability has either asked for an accommodation or where the need for one is “open and obvious.” Cadena, 946 F.3d at 724.
As to the first prong, while the Defendant has not conceded that Wells-Wright is a qualified individual under the ADA, Def.’s Reply (Wells-Wright) 19, ECF No. 324, she also has not provided any evidence to refute Wells-Wright’s claim that she has disability under the Act. Wells-Wright, on the other hand, pleaded that she has “emphysema, COPD, hiatal hernia, gastritis, high blood pressure, hypertension, muscle spasms, spinal stenosis, degenerative disc disease, a rare genetic bone deterioration disease, bipolar disorder, and schizoaffective disorder,” Pl. WellsWright’s Resp. 1–2; Second Am. Compl. ¶ 69, and that she informed WVDCR of her many health diagnoses when she was admitted to Northern Regional Jail. Second Am. Compl. ¶¶ 68–70. Additionally, her grievances show complaints of chronic pain; “spinal, lumbar, cervical stenosis,
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[deteriorating] bone disease, arthritis, and degenerative disc disease”; and a need for pain management. Wells-Wright Grievances 3, 10, 19, 21, 23. As such, Wells-Wright has, at a minimum, raised a question of material fact as to whether she has a disability under the ADA.
As to the second prong, Wells-Wright would need to show that she is “otherwise qualified to receive the benefits of a public service, program, or activity.” See Nat’l Fed. of the Blind, 813 F.3d at 502. Because jails are required to provide all basic services to the individuals they house, the Court is satisfied that Wells-Wright is entitled to appropriate housing and sleeping arrangements. Raynor, 817 F.3d at 127 (finding that the duties of correctional officials include “maintaining humane conditions of confinement”).
Finally, at least one grievance shows that Wells-Wright raised the fact that she had “only 1 mat to sleep on.” Wells-Wright Grievances 10. This grievance can be read in a way that suggests only having one mat exacerbated the pain she experienced due to her disabilities. Another grievance stated that she was being forced to sleep on the floor. Id. at 20. In her deposition, WellsWright testified that she was initially assigned to a cell on the first floor but that it was occupied, and when she reported it to a corrections officer she was told to “figure it out.” Wells-Wright Dep. 71–72. Most significantly, she specifically stated that she remembered requesting accommodations in the form of an extra mat and a bottom bunk. Id. at 79.
Given Wells-Wright’s grievances and deposition testimony, and viewing the facts in the light most favorable to the nonmovant, the Court finds a question of material fact remains as to whether she sought reasonable accommodations from the Defendant. As a consequence, a question of material fact remains as to whether the Defendant discriminated against her on the basis of her disability by failing to provide reasonable accommodations in the form of a second mat, a bottom bunk, or some other reasonable modification that would accommodate her disability and allow her
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to sleep with reduced pain. See Dee v. Md. Nat. Capitol Park & Plan. Comm’n, No. CIV.A. CBD09-491, 2010 WL 3245332, at *5 (D. Md. Aug. 16, 2010) (noting that reasonableness of an accommodation request is a question of fact); cf. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 416 (4th Cir. 2015) (finding reasonableness of accommodation under Title I of ADA is a question of fact). Accordingly, the Court declines to grant summary judgment in favor of the Defendant on Wells-Wright’s ADA claim.
iv. Conclusion Based on the memoranda and evidence available to the Court, all but one Plaintiff have
failed to state a failure to accommodate claim under the Americans with Disabilities Act. Accordingly, the Court grants the Defendant’s Motions for Summary Judgment as to the ADA claim in Count II with regard to Plaintiffs Baxley, Spiker, Reed, Edmondson, and Hall.38 Plaintiff Wells-Wright may proceed on her ADA Claim in Count II of the Second Amended Class Action Complaint.
IV. CONCLUSION In Conclusion, the Court DENIES, in part, and GRANTS, in part, ECF No. 263, ECF No. 267, ECF No. 269, ECF No. 271, and ECF No. 277. The Motions are denied to the extent that the Court finds the Named Plaintiffs’ claims are not moot; the Plaintiffs did not fail to exhaust
38 The Court is not without concerns about these Plaintiffs’ allegations that Defendant and WVDCR have failed to comply with the ADA. The Plaintiffs’ memoranda, in conjunction with the testimony of WVDCR employees and the Defendant’s responses to interrogatories, suggest that WVDCR may very well be failing to comport with the requirements of the ADA and its supporting regulations. For example, in response to interrogatories, the Defendant indicated that WVDCR does not track inmates with disabilities. Def.’s Answer Third Set of Interrog. 21. Similarly, Defendant could not provide any documentation to support her claim that WVDCR has a “designated responsible employee” who coordinates its efforts to comply with the ADA as required by 28 C.F.R. § 35.107. See Email 2, ECF No. 264-14; Def.’s Resp. Pl.’s Third Mot. Compel 15, ECF No. 251 (noting Defendant has no responsive documents to Plaintiffs ADA requests for production). Unfortunately, courts have consistently held that “Plaintiffs do not enjoy a private right of action to enforce implementing regulations which impose ‘an obligation beyond the statutory mandate.’” Brown v. Dep't of Pub. Safety & Corr. Servs., 383 F. Supp. 3d 519, 555 (D. Md. 2019) (quoting Iverson v. City of Bos., 452 F.3d 94, 98 (1st Cir. 2006)).
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their administrative remedies; and the Plaintiffs have not failed to state a claim of deliberate indifference in Count I of the Second Amended Complaint. The Motions are granted to the extent that Plaintiffs Baxley, Spiker, Reed, Edmondson, and Hall have failed to state a claim under the ADA. Accordingly, their claims in Count II are dismissed. The Court further DENIES Defendant’s Motion for Summary Judgment as to Donna Wells-Wright and Defendant’s Supplemental Motion for Summary Judgment as to Donna Wells-Wright. ECF No. 273 and ECF No. 328. Plaintiffs’ Motion for Leave to File a Surreply, ECF No. 336, is DENIED AS MOOT. Finally, Pursuant to Plaintiffs’ voluntary dismissal, WVDCR is DISMISSED as a party to this action.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of record and any unrepresented parties.
ENTER: December 21, 2020
ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE
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 Case 3:18-cv-01526 Document 353 Filed 10/29/20 Page 1 of 4 PageID #: 10346

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JOHN BAXLEY, JR., et al.

Plaintiffs,

v.

CIVIL ACTION NO. 3:18-1526

BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, et al.

Defendants.

MEMORANDUM OPINION AND ORDER

After granting Plaintiffs’ Counsel’s Motion to Withdraw and Hold the Motion for

Summary Judgment pending against Named Plaintiffs Eric L. Jones and Amber Arnett, the Court

held the Motion for Summary Judgment directed at Jones and Arnett in abeyance for thirty days.

ECF No. 316. Recognizing that Plaintiffs may not have received adequate notice of their pro se

status and the pending motion, the Court issued separate orders notifying Plaintiffs Jones and

Arnett of the pending motion and their right to file a responsive memorandum. ECF No. 346; ECF

No. 347. The Court provided Plaintiffs Jones and Arnett an additional seven days to file responses

in opposition to the Defendants’ motion. Id.

As Plaintiff Jones and Arnett have failed to file any responsive memoranda or pleadings,

the issue now before the Court is whether Plaintiffs have failed to prosecute their civil action. For

the following reasons, the Court finds that Plaintiffs Jones and Arnett have failed to exhibit an

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intent to proceed as Named Plaintiffs in this class action, and therefore the Court DISMISSES the claims brought by Plaintiffs Eric L. Jones and Amber Arnett with prejudice.
I. Background Plaintiffs Jones and Arnett are listed as Named Plaintiffs in a putative class action against
regarding medical and mental health treatment in West Virginia Regional Jails. ECF No. 67. On July 17, 2020, Defendants filed a Motion for Summary Judgment as to these plaintiffs. ECF No. 260. In their Motion, the Defendants claimed that Mr. Jones had been released from custody on May 19, 2020; that he had failed to appear for his noticed deposition; and that Plaintiffs’ counsel had “been unable to speak with him to re-schedule his deposition.” Id. at 1–2. Defendants also claimed that Ms. Arnett was released from custody on or about June 4, 2020 and that her counsel had lost contact with her. Id. at 2.
On August 7, 2020, Plaintiffs’ Counsel moved to hold the Motion for Summary Judgment in temporary abeyance noting that Counsel anticipated filing motions to withdraw from representation. ECF No. 309. Three days later, Counsel filed motions to withdraw from representation of both Plaintiffs. Counsel stated that Plaintiff Jones had obtained gainful employment after his release from custody and that his employment prevented his participation in a deposition and that “[b]y being unable to participate, Plaintiff has effectively indicated an intent to withdraw as a plaintiff in this matter.” ECF No. 310, at 1. With regard to Plaintiff Arnett, Counsel stated that she had been unable to make contact with her since her release. ECF No. 311. On August 12, 2020, The Court granted all three motions and held the Motion for Summary Judgment in temporary abeyance for thirty days. ECF No. 316.
On August 24, 2020, the Court issued orders advising Plaintiffs Arnett and Jones that the Motion for Summary Judgment was pending against them and that they had a right to file a
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response to the motion. ECF No. 346; ECF No. 347. Plaintiffs were given until October 1, 2020 to file responsive memoranda. To date, neither Plaintiff has filed any documents with the Court.
II. Discussion Federal Rule of Civil Procedure 41(b) states that “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). This rule solidifies the principle “that courts must have the authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). Although the rule does not explicitly provide the power for a court to dismiss a case sua sponte, district courts have the inherent authority to dismiss a case for failure to prosecute without waiting for a defendant’s motion. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (“Neither the permissive language of the Rule—which merely authorizes a motion by the defendant—nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief.”).
In this case, the Court is satisfied that Counsel for the Named Plaintiffs was diligent and made reasonable efforts to maintain contact with Plaintiff Arnett after her release from custody. The Court also agrees with Counsel that Plaintiff Jones’s failure to participate in discovery after his release indicates an intent to withdraw as a named plaintiff in this action. Since Counsel withdrew from representation, the Court has received no indication from Plaintiff Arnett or Jones that suggests they intend to continue pro se or with new counsel. Consequently, the Court concludes that these Plaintiffs have abandoned their claims.
III. Conclusion Given the totality of the circumstances, the Court FINDS that Plaintiffs Jones and Arnett
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Case 3:18-cv-01526 Document 353 Filed 10/29/20 Page 4 of 4 PageID #: 10349 have failed to prosecute their case. Accordingly, the Court DISMISSES with prejudice Plaintiffs Jones and Arnett’s claims from this action. The Court does not reach consideration of Defendants’ Motion for Summary Judgment, ECF No. 260. The Motion is therefore DENIED AS MOOT.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented parties.
ENTER: October 29, 2020 ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE
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 Case 3:18-cv-01526 Document 88 Filed 02/03/20 Page 1 of 3 PageID #: 517

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

Civ. Act. No. 3:18cv01526

(Chambers, J.)

BETSY JIVIDEN, in her official capacity as Commissioner of the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and SHELBEY SEARLS, in his official capacity as the Superintendent of WESTERN REGIONAL JAIL AND CORRECTIONAL FACILITY,

Defendants.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

NOW COME the named Plaintiffs, by counsel, and pursuant to Federal Rules of Civil

Procedure 23(a) and 23(b)(2), move this Honorable Court to certify this proceeding as a class

action.1 Based upon this motion, the complaint, and the authorities and principles discussed in

Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Class Certification, Plaintiffs ask this

Court to certify a Plaintiff class for declaratory and injunctive relief, defined as follows:

1 Plaintiffs file this preliminary motion for class certification while class discovery is ongoing to uphold their responsibilities to aggressively pursue and protect the interests of the class. Plaintiffs anticipate filing an amended motion for class certification as class discovery progresses, and do not suggest that Defendants’ response is necessary prior to the deadlines set forth by this Court.
1

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All persons who were at any time on or after December 18, 2018, or who will be, admitted to a jail in West Virginia with a discernable, treatable medical and/or mental health problem. Plaintiffs further ask this Court to certify a Plaintiff subclass for declaratory and injunctive relief, defined as follows: All persons who were at any time on or after December 18, 2018, or who will be, admitted to a jail in West Virginia who meet the definition of being a “qualified individual with a disability” under the ADA. As set forth in the accompanying Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification, the named Plaintiffs meet the requirements for certification of a class under Federal Rule of Civil Procedure 23(a), including numerosity, common questions of law and fact, common claims, and that “the representative parties will fairly and adequately protect the interests of the class.” Moreover, this class is appropriate for certification under Federal Rule of Civil Procedure 23(b)(2), as the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Undersigned counsel also request to be appointed as counsel for the class pursuant to Federal Rule of Civil Procedure 23(g), based upon the facts set forth in Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Class Certification, and in class counsel’s individual supporting declarations. See Decl. of Lydia C. Milnes, attached as Ex. 1; and Decl. of Jennifer S. Wagner, attached as Ex. 2. WHEREFORE, Plaintiffs, who bring this action to address widespread, systemic failures by Defendants West Virginia Division of Corrections and Rehabilitation and Betsy Jividen,
2

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Commissioner, to provide adequate, timely medical and mental health treatment to inmates in jail facilities, respectfully request that this Court certify the class and subclass as stated above.2
Respectfully submitted, JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on behalf of themselves and others similarly situated, By Counsel:
/s/ Lydia C. Milnes Lydia C. Milnes (State Bar No. 10598) Jennifer S. Wagner (State Bar No. 10639) Mountain State Justice, Inc. 325 Willey Street Morgantown, WV 26505 Phone: (304) 326-0188 Facsimile: (304) 326-0189 lydia@msjlaw.org jennifer@msjlaw.org Counsel for Plaintiffs
2 Plaintiffs’ complaint additionally raises claims relating to the conditions at Western Regional Jail and Correctional Facility, designated in the complaint as the “Class B” claim. Plaintiffs will seek certification of that class in a separately filed motion. The instant motion seeks class certification strictly of the “Class A” and the “Class A Subclass” claims.
3

 
 Case 3:18-cv-01526 Document 67 Filed 12/19/19 Page 1 of 40 PageID #: 426

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

Civ. Act. No. 3:18cv01526

(Chambers, J.)

BETSY JIVIDEN, in her official capacity as Commissioner of the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, the WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and SHELBEY SEARLS, in his official capacity as the Superintendent of WESTERN REGIONAL JAIL AND CORRECTIONAL FACILITY,

Defendants.

FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1. This is an action on behalf of inmates admitted to jail facilities throughout West

Virginia, which are administered by the West Virginia Division of Corrections and Rehabilitation.

Specifically, Plaintiffs seek to ensure that jails in West Virginia promptly provide appropriate and

necessary medical and mental health treatment to inmates upon admission, as required under the

Eighth and Fourteenth Amendments of the United States Constitution, and the Americans with

Disabilities Act. In addition, several of the named plaintiffs who are housed at Western Regional

Jail and Correctional Facility (“Western Regional”) in Barboursville, West Virginia, bring this

action on behalf of inmates housed at Western Regional stemming from the Defendants’ violation

Case 3:18-cv-01526 Document 67 Filed 12/19/19 Page 2 of 40 PageID #: 427
of the Eighth and Fourteenth Amendments to the United States Constitution for deliberate indifference to plaintiffs’ health and safety as a result of the conditions of confinement in that facility.
2. Plaintiffs bring this suit seeking solely declaratory and injunctive relief. I. JURISDICTION
3. This action arises under the Civil Rights Act, 42 U.S.C. § 1983, and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12133.
4. This Court has jurisdiction over plaintiffs’ claims pursuant to 28 U.S.C. § 1343(a) (3)-(4) and 28 U.S.C. § 1331.
5. Declaratory and injunctive relief are authorized pursuant to 28 U.S.C. §§ 2201 and 2202, and Federal Rules of Civil Procedure 57 and 65.
6. Venue is proper because one or more of the plaintiffs reside in this District, and a substantial part of the acts and omissions of which Plaintiffs complain occurred in this District. See 28 U.S.C. § 1391(b).
II. PARTIES 7. Defendant West Virginia Division of Corrections and Rehabilitation (“WVDOCR”) is the administrative division of the West Virginia Department of Military Affairs and Public Safety tasked with administering and exercising direct and effective control over prisons and jails in West Virginia. WVDOCR operates nineteen jail facilities throughout West Virginia, including Western Regional, and is directly responsible for the safety, wellbeing, and constitutional treatment of all inmates in its custody. WVDOC is responsible for the actions of its agents, including medical and other subcontractors. As a government agency, WVDOCR is a “public entity” as defined by 42 U.S.C. § 12131(1) of Title II of the ADA.

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8. Defendant Betsy Jividen is the Commissioner of the WVDOCR. In that role, Defendant Jividen is vested with executive authority and responsibility for the administration, operation, and control of all WVDOCR facilities and employees of WVDOCR facilities. Defendant Jividen’s duties include establishing, monitoring, and enforcing policy directives and procedures that ensure constitutional confinement and treatment of all people in the custody of the WVDOCR. Among other things, Commissioner Jividen is charged with ensuring that inmates receive appropriate medical and mental health treatment upon admission to and while housed in any West Virginia jail. Commissioner Jividen is similarly charged with maintaining and operating the jail facilities in West Virginia in a manner that meets the minimal civilized measure of life’s necessities, by providing beds and bedding for all inmates, access to basic hygiene products and laundry, and providing living conditions free of mold, human waste, and other contaminants for all inmates housed therein.
9. At all relevant times, Defendant Jividen was acting under the color of state law. Defendant Jividen is named solely in her official capacity for the purposes of seeking declaratory and prospective injunctive relief.
10. Defendant Shelby Searls is the Superintendent of Western Regional Jail and Correctional Facility, in Barboursville, West Virginia. In that capacity, Defendant Searls is tasked by law with the care and custody of all detainees and prisoners incarcerated at Western Regional. Defendant Searls is vested with executive authority and responsibility for the safe staffing, administration, operation, and control of Western Regional, including the oversight of all Western Regional employees, and the authority to promulgate, amend, and implement all policies and procedures within Western Regional to ensure constitutional confinement and treatment of individuals incarcerated within. Among other things, Defendant Searls is charged with ensuring

Case 3:18-cv-01526 Document 67 Filed 12/19/19 Page 4 of 40 PageID #: 429
that inmates at Western Regional Jail receive appropriate medical and mental health treatment upon admission. Defendant Searls is similarly charged with maintaining and operating Western Regional in a manner that meets the minimal civilized measure of life’s necessities, by providing beds and bedding for all inmates, affording access to basic hygiene products and laundry, and providing living conditions that are free of mold, human waste, and other contaminants.
11. At all relevant times, Defendant Searls was acting under the color of state law. Defendant Searls is named solely in his official capacity for the purposes of seeking declaratory and prospective injunctive relief.
12. Plaintiff John Baxley, Jr. was a pretrial detainee housed at Western Regional when this suit was filed; he has since been convicted and is now a prisoner housed at Western Regional. Plaintiff Baxley has been incarcerated in regional jails in West Virginia on numerous prior occasions. At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
13. Plaintiff Eric L. Jones was a prisoner housed at Western Regional serving time for a parole revocation when this case was filed; he has since been released. Plaintiff Jones has had previous periods of incarceration at regional jails in West Virginia. At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
14. Plaintiff Samuel Stout was a pretrial detainee housed at Western Regional Jail when this suit was filed; he is now a prisoner housed at Western Regional.
15. Plaintiff Amber Arnett is a pretrial detainee housed at North Central Regional Jail and Correctional Facility (“North Central Regional”). This is Plaintiff Arnett’s third time being incarcerated in a West Virginia regional jail. At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.

Case 3:18-cv-01526 Document 67 Filed 12/19/19 Page 5 of 40 PageID #: 430
16. Plaintiff Earl Edmondson is a prisoner housed at Northern Regional Jail and Correctional Facility (“Northern Regional”). Plaintiff Edmondson has a history of prior incarcerations at regional jails in West Virginia. At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
17. Plaintiff Joshua Hall is a prisoner housed at North Central Regional. Plaintiff Hall has a history of prior incarcerations at regional jails in West Virginia. At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
18. Plaintiff Donna Wells-Wright was an inmate at North Central Regional and at Northern Regional on a parole revocation; she was released in or around November 2019. Plaintiff Wells-Wright has a history of prior incarcerations at regional jails in West Virginia. At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
19. Plaintiff Robert Watson is a pretrial detainee housed at Northern Regional. Plaintiff Watson has a history of prior incarcerations at regional jails in West Virginia At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
20. Plaintiff Heather Reed is a prisoner housed at Lakin Correctional Center and Jail (“Lakin”); she was transferred to Lakin in or around December 2019, after being housed at Northern Regional Jail and Tygart Valley Regional Jail and Correctional Facility (“Tygart Valley Regional”). Plaintiff Reed has been incarcerated at regional jails in West Virginia on numerous prior occasions. At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
21. Plaintiff Danny Spiker, Jr. was a pretrial detainee housed at Tygart Valley Regional until his transfer to Mildred Mitchell Bateman Hospital, from which he was released without

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returning to jail. Plaintiff Spiker has pending warrants against him in two counties, and understands that he will be arrested and re-admitted to a regional jail once those warrants are approved. At all relevant times, this plaintiff is and has been a “qualified individual with a disability” as defined by the ADA.
22. Plaintiffs bring this action on their own behalf and on behalf of all others similarly situated, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2).
III. STATEMENT OF FACTS A. Class A and Subclass Failure to provide Medical and Mental Health Treatment to Inmates upon Admission
23. Pursuant to West Virginia Code of State Rules § 95-1-14.1, entitled Right to medical care, “[a]ll inmates shall have prompt access to necessary medical, dental, and psychiatric care, provided in a reasonable manner by licensed personnel.”
24. Upon information and belief, Defendants lack an adequate policy and/or routinely fail to implement adequate practices to ensure prompt treatment of inmates who have serious medical and/or mental health needs upon admission to jail.
25. Defendants’ policies, or lack thereof, are consistent across all West Virginia regional jails, as demonstrated by the common failure to provide timely and adequate treatment to inmates upon incarceration at jails across West Virginia, as described in further detail below.
26. Defendants retain the services of a contractor to assist in providing medical and mental health services in the regional jails; in this capacity, the contractor serves as Defendants’ agent. This same contractor is engaged in each of the West Virginia regional jails such that the policies, procedures, and practices relating to treatment of inmates at each facility is consistent across facilities.

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Plaintiff Baxley 27. Plaintiff John Baxley, Jr. arrived at Western Regional on or about August 15, 2018,
with multiple preexisting mental and physical health diagnoses. 28. Among other things, Mr. Baxley has been diagnosed with depression, anxiety, bi-
polar disorder, paranoid delusional disorder, and schizophrenia, as well as a seizure disorder and severe asthma, and substance abuse disorder.
29. Prior to admission to Western Regional, Mr. Baxley was prescribed Seroquel and Trazodone to treat his mental illnesses, Depakote and Klonopin to treat his seizure disorder, and two asthma inhalers.
30. Upon his arrest and admission to Western Regional, Mr. Baxley’s wife called the facility seeking to bring his medications, but her request was denied.
31. After being informed of his serious mental health diagnoses, Mr. Baxley was placed on suicide watch but was not given his anti-psychotic and antidepressant medications.
32. Abruptly stopping antidepressant and antipsychotic medications is known to cause serious withdrawal symptoms, including suicidal thoughts and behaviors.
33. Suicide watch is an extremely restrictive setting. When a pretrial detainee such as Mr. Baxley is placed on suicide watch, s/he is stripped of all clothing and instead given a light weight smock to wear; s/he is not permitted to have any bedding or other personal affects.
34. In Mr. Baxley’s case, he was housed in a cell with seven inmates, who upon information and belief were also on suicide watch, many because they were detoxing from street drugs; there were not enough beds for all the inmates, and many, including Mr. Baxley, had to sleep on the floor.

Case 3:18-cv-01526 Document 67 Filed 12/19/19 Page 8 of 40 PageID #: 433
35. Mr. Baxley went without any antipsychotic medications for approximately three days. During this period he did, in fact, feel suicidal and entered a psychotic state, in which he had auditory and visual hallucinations, and suffered physical side effects including hot and cold flashes, sweats, nausea, inability to sleep, and loss of appetite.
36. After approximately three days, Mr. Baxley began receiving Seroquil and Depakote, but not at the same dosages that he had been prescribed prior to admission; Mr. Baxley was not provided with Trazadone or Klonopin.
37. In or around mid-September 2018, Mr. Baxley met with a mental health provider, and reported auditory hallucinations.
38. In or around October 15, 2018, after going without a proper anti-psychotic medication regime, Mr. Baxley entered a psychotic state; upon information and belief, Mr. Baxley reported to correctional officers that “voices in my head are telling me to do horrible things, get me out of here before it’s too late.”
39. Officers were summoned to remove him from the cell, but Mr. Baxley responded to them in a violent manner because he was in a psychotic state at the time and believed they were trying to hurt him; as a result, Mr. Baxley was sprayed with chemical agents by the officers.
40. In or around December 2018, Mr. Baxley was transferred to a WVDOCR prison facility for a short period, during which time he was placed on a new anti-depressant medication.
41. Mr. Baxley was then transferred back to Western Regional on or about January 26, 2019; upon information and belief, the prison transferred him back with a packet of information regarding Mr. Baxley’s diagnoses and prescriptions, and a short supply of his medications.
42. After the supply ran out, Mr. Baxley went approximately five days with receiving his anti-depressant because Defendants had failed to timely re-order his prescription.

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43. Like with all members of the class, Defendants failed and refused to provide Mr. Baxley timely and appropriate treatment for his pre-existing conditions upon his incarceration at a West Virginia regional jail.
44. Like with all members of the class, Mr. Baxley suffered injury as a result. Plaintiff Spiker
45. Plaintiff Danny Spiker has been diagnosed since childhood with bi-polar disorder and attention deficit hyperactivity disorder (ADHD), has been hospitalized in mental health facilities on number occasions, and has a history of suicidal ideation.
46. Mr. Spiker was arrested on or about October 31, 2019, and admitted to Tygart Valley Regional.
47. Mr. Spiker was suicidal at the time of his arrest. 48. Upon arriving at Tygart Valley Regional, Mr. Spiker informed Defendants that he was suicidal. 49. No medical intake was done for Mr. Spiker at that time; rather he was placed in a holding cell with a number of other inmates. 50. While in the holding cell, Mr. Spiker suffered from a panic attack, and was noted to be sweating profusely, and had a rash on his chest, arms, and neck. As a result, Mr. Spiker was transported to a local hospital for evaluation. 51. While at the hospital, Mr. Spiker intentionally hit his head on the corner of a desk in an effort to injure himself; his head was bandaged with liquid stitches and returned to the regional jail.

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52. Upon arrival back at Tygart Valley Regional, on or about November 1, 2019, Mr. Spiker was placed in a “pickle suit,” a green suit used for suicidal inmates, and placed alone in a cell on suicide watch.
53. Mr. Spiker was not seen by a mental health professional at this time. 54. Despite being placed on “fifteen minute suicide watch,” upon information and belief, no officer or medical personnel appropriately monitored the cell. 55. While alone in his cell, Mr. Spiker used the Velcro on his pickle suit to rub the liquid stiches off of his wound, and continued to rub his wound until it was re-opened and bleeding. 56. According to Defendants’ own records, Mr. Spiker picked at his wounds for over three hours; when finally discovered by jail staff, Mr. Spiker was lying face down on the floor surrounded by a large amount of blood. 57. Mr. Spiker was transported back to the local hospital and his wound was rebandaged; he was then returned to Tygart Valley Regional and placed in a restraint chair for approximately eight hours. 58. Upon release from the restraint chair, Mr. Spiker was placed back in a pickle suit and placed back on suicide watch, in a different single cell. 59. Mr. Spiker remained on suicide watch for several days before being seen or evaluated by a mental health worker. 60. This worker asked Mr. Spiker whether he was suicidal with no other evaluation or treatment, and released him from suicide watch. 61. Mr. Spiker was then placed into general population, in a cell on the top tier of his cell block.

Case 3:18-cv-01526 Document 67 Filed 12/19/19 Page 11 of 40 PageID #: 436
62. On or about the early morning of November 10, 2019, Mr. Spiker hung himself from the balcony of his cell block, using a makeshift rope made out of his sheet.
63. Mr. Spiker planned his attempted suicide for a time when he expected everyone to be asleep; fortunately for Mr. Spiker, an inmate on the bottom tier was awake and quickly discovered what happened; the inmate pushed up on Mr. Spiker’s feet until correctional officers could cut down the rope. Mr. Spiker was still alive, but unconscious.
64. Shortly thereafter, the jail sought to have Mr. Spiker involuntarily committed to a state psychiatric hospital; Mr. Spiker was ultimately sent to Mildred Mitchell Bateman Hospital, in Huntington, West Virginia.
65. Upon arrival at Bateman Hospital, Mr. Spiker was immediately started on medication, which quickly alleviated Mr. Spiker’s suicidal ideations.
66. Like with all members of the class, Defendants failed and refused to provide Mr. Spiker timely and appropriate treatment for his pre-existing conditions upon his incarceration at a West Virginia regional jail.
67. Like with all members of the class, Mr. Spiker suffered injury as a result. Plaintiff Wells-Wright
68. Plaintiff Donna Wells-Wright was admitted to Northern Regional on or about August 25, 2019.
69. During her initial intake, Ms. Wells-Wright informed the facility of her pre-existing diagnoses, which include Chronic Obstructive Pulmonary Disease (COPD), emphysema, lumbar stenosis, cervical stenosis, spinal stenosis, deteriorating bone disease, degenerative disc disease, arthritis, high blood pressure, hiatal hernia, and gastritis.

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70. She additionally informed the Defendants that she was prescribed and taking numerous medications to assist with her breathing, pain, inflammation, and to control her high blood pressure.
71. Ms. Wells-Wright did not receive any medications at that time. 72. On or about August 28, 2019, Ms. Wells-Wright was transferred to North Central Regional following a court appearance. 73. During booking into North Central, Ms. Wells-Wright again provided the information about her diagnoses and prescriptions, and gave them the name of her pharmacy where she filled her medications. 74. Following booking, Ms. Wells-Wright was placed in a holding cell with approximately sixteen other women for seven days, while undergoing detox. Upon information and belief, Ms. Wells-Wright was detoxing in part from her pain medication, which is prescribed for her multiple chronic conditions. 75. While in this holding cell, Ms. Wells-Wright had a blanket, but no mat or other bedding, and had to sleep on the floor. 76. After several days, Ms. Wells-Wright began to receive minimal dosages of a few medications related to Ms. Wells-Wright’s high blood pressure, COPD and emphysema; these dosages were not sufficient to treat Ms. Wells-Wright’s breathing conditions. 77. After going days without her proper medication, she was in pain, struggling to breath, and could not lift her left leg. 78. By the time she was moved from the holding cell, she was not able to lift herself up off the floor, and had to be lifted by other people.

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79. Despite her condition, Ms. Wells-Wright was not taken to the medical unit or provided medical treatment. Instead she was placed in a general population cell on a second tier, requiring her to walk up and down 15 steps.
80. Due to her condition, other inmates would often bring her food trays and find other ways to help Ms. Wells-Wright so that she did not have to climb the stairs.
81. On or about September 10, 2019, fifteen days after being incarcerated, North Central Regional allowed Ms. Wells-Wright’s sister to bring her inhalers to the facility.
82. Ms. Wells-Wrights sister delivered her Spiriva inhaler, Symbicort inhaler, ProAir inhaler, and her Theophylline medication, all of which she uses to treat her COPD and emphysema.
83. Thereafter, Ms. Wells-Wright was able to obtain regular breathing treatments. 84. On or about September 11, 2019, Ms. Wells-Wright finally began receiving Naproxen, to help reduce inflammation and treat her arthritis. 85. Approximately a week later, on or about September 17, 2019, Ms. Wells-Wright was moved back to Northern Regional, but her medications and inhalers were left at North Central Regional. 86. Ms. Wells-Wright’s sister then drove to North Central Regional, obtained the medications, and delivered them to Ms. Wells-Wright at Northern Regional on or about September 18, 2019. 87. Even though they were delivered on September 18th, Ms. Wells-Wright did not receive her medications again until on or about September 21, 2019. 88. Ms. Wells-Wright never received meaningful treatment for her chronic pain caused by her lumbar, cervical and spinal stenosis, as well as her deteriorating bone disease and degenerative disc disease.

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89. Like with all members of the class, Defendants failed and refused to provide Ms. Wells-Right timely and appropriate treatment for her pre-existing conditions upon her incarceration at a West Virginia regional jail.
90. Like with all members of the class, Ms. Wells-Wright suffered injury as a result. Plaintiff Arnett
91. Plaintiff Amber Arnett has a history of severe depression, post-traumatic stress disorder (PTSD), and substance abuse.
92. During prior incarcerations in West Virginia regional jails, Ms. Arnett had been recorded as being suicidal and placed on suicide watch.
93. During prior incarcerations in West Virginia regional jails, Ms. Arnett had been prescribed Zoloft to treat her mental illness.
94. Ms. Arnett was most recently incarcerated at North Central Regional on or about September 19, 2019.
95. Prior to being incarcerated, Ms. Arnett had been prescribed medications to control her mental illness, including Cymbalta.
96. At intake at North Central Regional, Ms. Arnett informed Defendants’ representatives of her history with mental illness, a prior commitment to a psychiatric hospital, and history of attempting suicide.
97. Initially after admission, Ms. Arnett was monitored and treated for detox from substance use disorder.
98. Despite previously receiving Zoloft while incarcerated at North Central Regional to treat her symptoms of depression and PTSD, Ms. Arnett was not evaluated by any mental health providers nor prescribed any medications for her mental health conditions.

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99. After approximately ten days without psychiatric medications and without being seen by any mental health providers, Ms. Arnett began to struggle with anxiety and depression.
100. On or about September 30, 2019, Ms. Arnett was placed on suicide watch in a holding cell with three other women also on suicide watch.
101. All four women were placed in pickle suits; none had blankets or mats or any personal items. The cell had only one bed and thus three of the women, including Ms. Arnett, were forced to sleep on the floor.
102. Despite Ms. Arnett making multiple requests to see a mental health provider, starting when she was first admitted and continuing thereafter, and despite being placed on suicide watch, it took Defendants an entire month to have a psychiatrist evaluate Ms. Arnett.
103. On or about October 17, 2019, Ms. Arnett finally met with a psychiatric provider and was prescribed Effexor and Risperdal to treat her mental illness.
104. Like with all members of the class, Defendants failed and refused to provide Ms. Arnett timely and appropriate treatment for her pre-existing conditions upon her incarceration at a West Virginia regional jail.
105. Like with all members of the class, Ms. Arnett suffered injury as a result. Plaintiff Edmondson
106. Plaintiff Earl Edmondson is a seventy-five (75) year old Vietnam combat veteran who suffers from PTSD, a chronic sinus condition, and had been diagnosed with a bulging disc in his back prior to incarceration.
107. At the time of his incarceration, Mr. Edmondson was awaiting a blood test related to his bone cancer diagnosis, which had been ordered by his primary care provider.

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108. Further, Mr. Edmondson requires the use of false teeth; at the time he was incarcerated, he was awaiting a fitting of his false teeth, which had been prepared and were waiting at his dental provider. Implements had already been placed in his mouth to secure the teeth.
109. Upon admission to Northern Regional in or around July 15, 2019, Mr. Edmondson informed the Defendants of his preexisting conditions, and that he had been receiving treatment for his sinus condition, medication to treat his PTSD, and was receiving physical therapy to treat his bulging disc.
110. Mr. Edmondson was then placed in a cell with two other men, but only one bed; as a result, Mr. Edmondson was forced to sleep on a mat on the floor below the toilet for approximately six weeks.
111. Sleeping on a mat on the floor aggravated Mr. Edmondson’s back condition, but he has never received any treatment for that condition.
112. Despite Defendants having housed Mr. Edmondson before, and thus having records of prior treatment for his PTSD, Mr. Edmondson was not provided with any medications to treat his condition for approximately three months.
113. While going without medications, Mr. Edmondson suffered from flash backs, panic attacks, severe depression, insomnia and low energy.
114. After approximately three months, Mr. Edmondson was prescribed BuSpar to treat his anxiety; several weeks later, in or around November 2019, Mr. Edmondson finally met with a psychiatrist via videoconference, after which he was prescribed Prozac as well.
115. After approximately three months, Mr. Edmondson was provided with an antibiotic to treat his sinus infection.

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116. Despite his false teeth being ready for pick up, Defendants have refused to request them from his provider and have them delivered to the jail. As a result, Mr. Edmondson’s ability to eat is impaired.
117. Despite repeated requests, Defendants have failed and refused to complete the testing necessary for Mr. Edmondson’s bone cancer.
118. Mr. Edmondson is extremely concerned about the cancer progressing without detection and treatment.
119. Like with all members of the class, Defendants failed and refused to provide Mr. Edmondson timely and appropriate treatment for his pre-existing conditions upon his incarceration at a West Virginia regional jail.
120. Like with all members of the class, Mr. Edmondson suffered injury as a result. Plaintiff Hall
121. Plaintiff Joshua Hall was admitted to North Central Regional Jail on or about October 1, 2019.
122. Mr. Hall has a long history of mental health issues including severe anxiety and substance use disorder, although he had been sober for approximately a year prior to his incarceration; Mr. Hall is also diagnoses with tachycardia (a heart condition causing the heart to beat faster than it should) and high blood pressure.
123. At the time of incarceration, Mr. Hall was prescribed and taking Lexipro and Valium to treat his anxiety, and Metoprolol for his heart and high blood pressure.
124. Upon intake, Mr. Hall informed the facility of his diagnoses and prescriptions and was then placed in a holding cell for approximately four days, which had approximately fifteen

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other men in it when Mr. Hall was placed there, but that number grew to approximately thirty-two men. The cell was so crowded that there was no room to lie down.
125. While in the holding cell, Mr. Hall did not receive any medications. 126. When Mr. Hall goes without his heart medications, his heart rate quickly increases and he quickly becomes very ill. 127. While in the holding cell without his heart medication, Mr. Hall felt sweaty, clammy, flushed, dizzy, and nauseas. 128. After release from the holding cell, Mr. Hall began receiving Metoprolol and Lexipro. 129. After approximately one month, he abruptly stopped receiving the Lexipro for approximately twenty days. Upon information and belief, this lapse was due solely to the Defendants failure to re-fill Mr. Hall’s prescription. 130. Like with all members of the class, Defendants failed and refused to provide Mr. Hall timely and appropriate treatment for his pre-existing conditions upon his incarceration at a West Virginia regional jail. 131. Like with all members of the class, Mr. Hall suffered injury as a result. Plaintiff Watson 132. Plaintiff Robert Watson is deaf, has COPD, arthritis, and has been an insulin dependent diabetic for approximately twenty years, as a result of which he has diabetic nerve pain and loss of vision. 133. Prior to incarceration, Mr. Watson treated his COPD through use of an Alburterol inhaler.

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134. When Mr. Watson was admitted to Northern Regional on or about September 30, 2019, he brought his hearing aids with him, upon which he is dependent.
135. After several days, while he was being held in booking, his hearing aids were confiscated; they have never been returned and Mr. Watson has been told that they have been lost.
136. Defendants have not provided Mr. Watson with new hearing aids, and Mr. Watson is unable to adequately hear what is going on around him or participate and relies on reading lips to communicate. This has interfered with his ability to participate in the daily activities at Northern Regional in the same manner as his hearing peers.
137. Mr. Watson did begin receiving insulin upon admission to Northern Regional, however the medical providers who issue the insulin to him will not tell him how much he is receiving nor what type of insulin is being issued.
138. Having had insulin dependent diabetes for twenty years, Mr. Watson is well-versed in understanding how much and what type of insulin he needs, and given his symptoms, he understands that he is not receiving the correct dosages at the correct times.
139. Defendants further refuse to treat Mr. Watson’s diabetes through an appropriate diet.
140. As a result, he experiences discomfort, increased nerve pain, and increased loss of vision.
141. While Mr. Watson was previously incarcerated at St. Mary’s Correctional Center, a diabetic inmate at that facility died as a result of not receiving appropriate treatment; Mr. Watson is extremely concerned he will also die for this reason.
142. Mr. Watson has not been provided an inhaler or other necessary treatments for his COPD, and suffers from constant discomfort in his left lung.

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143. Mr. Watson is not receiving any treatment for his diabetic nerve pain, nor his arthritis.
144. Like with all members of the class, Defendants failed and refused to provide Mr. Watson timely and appropriate treatment for his pre-existing conditions upon his incarceration at a West Virginia regional jail.
145. Like with all members of the class, Mr. Watson suffered injury as a result. Plaintiff Jones
146. Plaintiff Eric Jones similarly arrived at Western Regional with a preexisting medical condition.
147. Mr. Jones has high blood pressure and, prior to being admitted to Western Regional, took daily blood pressure medication to control his disease; without daily treatment, high blood pressure can cause heart attacks, strokes, and aneurisms, among other things.
148. Upon admission, Mr. Jones informed employees of the Defendants of his medical condition and asked to be given blood pressure medication.
149. Mr. Jones further explained that he had, until several days before, been incarcerated at Huttonsville Correctional Center, a WVDOCR facility, where he had received medication to treat his high blood pressure.
150. Upon information and belief, despite another WVDOCR facility having Mr. Jones’s medical files, including his diagnosis of high blood pressure and prescription for medication, Defendants took no steps to obtain those records and provide Mr. Jones with his medication.
151. Indeed, Mr. Jones went approximately two weeks without receiving any blood pressure medication.

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152. This denial of medication caused Mr. Jones significant anxiety, because he understood that failure to control his blood pressure could result in life-threatening consequences, including heart attacks, strokes, and aneurisms.
153. Like with all members of the class, Defendants failed and refused to provide Mr. Jones timely and appropriate treatment for his pre-existing conditions upon his incarceration at a West Virginia regional jail.
154. Like with all members of the class, Mr. Jones suffered injury as a result. Plaintiff Reed
155. Plaintiff Heather Reed has a learning disability and an intellectual disability; when in school, she was educated in special education classrooms and she cannot read or spell.
156. In addition, Plaintiff Reed has numerous mental health and medical diagnoses, including bi-polar disorder, depression, anxiety, ADHD, Type 1 diabetes (for which she requires daily insulin), thyroid problems, Rheumatoid Arthritis, gastritis, and a heart condition.
157. In addition to taking daily insulin for her diabetes, Ms. Reed was prescribed Lamictal to treat her bipolar disorder, Vistaril to treat her anxiety, Synthroid to treat her thyroid condition, Prilosec for gastritis, Adderall for ADHD, and a heart medication.
158. Plaintiff Reed was transferred to Northern Regional in or around April 2019, from a jail facility in Ohio.
159. While at the facility in Ohio, Ms. Reed was receiving numerous medications to treat her various conditions and, upon information and belief, they were transferred to Northern Regional with Ms. Reed.
160. Upon arrival at Northern Regional, Ms. Reed was denied all medications except her insulin, thyroid medication, and heart medication.

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161. Ms. Reed repeatedly asked to be put back on her Lamictal to treat her bi-polar disorder; Ms. Reed’s requests were denied and she eventually lost control and was placed in segregation due to acting out.
162. After several months without treatment, Defendants began providing Lamictal to Ms. Reed again.
163. In or around late July, Ms. Reed was transferred to Tygart Valley Regional. 164. While at Tygart Valley, Ms. Reed witnessed a nurse mixing multiple types of insulin before giving her an injection. 165. Mixing different types of insulin can be dangerous if not specifically prescribed for a patient. 166. Upon information and belief, Ms. Reed had been prescribed Lantus insulin, which is specifically not supposed to be mixed with other insulins. 167. Not long after discovering the mixing of insulins, Ms. Reed began to have episodes of passing out; Ms. Reed believes she may be having seizures, but she is not sure. 168. Ms. Reed has reported these episodes but, upon information and belief, no testing has been done to determine the cause of the episodes, and Ms. Reed continues to have them. 169. Like with all members of the class, Defendants failed and refused to provide Ms. Reed timely and appropriate treatment for her pre-existing conditions upon her incarceration at a West Virginia regional jail. 170. Like with all members of the class, Ms. Reed suffered injury as a result. Class Member R.H. 171. Class member R.H. is an HIV positive inmate. R.H. was admitted to Western Regional in or around the summer of 2017, at which time he informed Defendants of his status as

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being HIV positive and the anti-retroviral medications which he was taking prior to admission. 172. Upon information and belief, despite having numerous inmates who are HIV
positive, Defendants had no policy or procedure to ensure that R.H. could continue on his antiretroviral medications without disruption. Defendants took no steps to quickly reinstate R.H.’s medications, such as contacting his treating physician in the community to obtain his prescriptions.
173. R.H. did not receive any medications to treat his HIV for approximately one week; at that point, he began receiving one of the drugs that is part of his antiretroviral regimen but not the others.
174. Upon information and belief, this practice is dangerous and contraindicated, as taking one drug in an antiretroviral regimen without the others can lead to drug resistant virus mutations.
175. It took Defendants approximately one month to provide R.H. with the full set of antiretroviral drugs that he was supposed to be taking.
176. Thereafter, R.H. would receive his needed medications for approximately a month at a time, but when that prescription would run out, he consistently went about a week without medications before he would begin to receive them again.
177. Like with all members of the class, Defendants failed and refused to provide R.H. timely and appropriate treatment for his pre-existing conditions upon his incarceration at a West Virginia regional jail.
178. Like with all members of the class, R.H. suffered injury as a result.

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Class A and Subclass Allegations 179. Class A includes all persons who were at any time on or after December 18, 2018,1
or who will be, admitted to a jail in West Virginia with a discernable, treatable medical and/or mental health problem.
180. There are questions of law or fact common to Class A. 181. Common questions of fact for the members of Class A include whether a policy or procedure exists to ensure that class members promptly receive appropriate medical and/or mental health treatment when they enter the jails in West Virginia, and whether inmates in fact do promptly receive such treatment. 182. Common questions of law applicable to Class A include whether Defendants have acted with deliberate indifference to serious medical needs of inmates at the time of admission to jails in West Virginia. 183. A subclass of Class A includes all individuals who were at any time on or after December 18, 2018, inmates admitted to a jail in West Virginia who meet the definition of being a “qualified individual with a disability” under the ADA. 184. There are questions of law or fact common to the subclass. 185. Common questions of fact for the subclass, i.e. inmates who are qualified individuals with a disability under the ADA, include whether such inmates receive the necessary accommodations for their disabilities to enable them to participate in jail life in the same manner as non-disabled inmates. 186. Common questions of law applicable to the subclass, i.e. inmates with qualifying
1The class timeframe relates back to the original date of filing of Plaintiffs Baxley’s and Stout’s pro se complaints, which were filed as a result of said Plaintiffs’ failed attempt to file a class action by filing a complaint jointly with approximately twenty other inmates.

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disabilities under the ADA, include whether Defendants have engaged in discrimination by failing to provide said inmates with reasonable accommodations to enable them to live with the same measure of health and safety as inmates without disabilities who are confined to jails in West Virginia.
187. The class and subclass are so numerous that joinder of all members is impracticable. 188. Class members of Class A and its subclass are geographically dispersed throughout the length and breadth of the state, and membership is fluid as individual inmates are admitted to and released from the jails, or are transferred to prison facilities. 189. The claims of Plaintiffs Baxley, Jones, Arnett, Edmondson, Hall, Wells-Wright, Watson, Reed, and Spiker are typical of the claims of Class A as a whole, and the subclass. They have been subjected to and suffered injury as the result of the same policies, or lack thereof, and practices in the various facilities as the absent class and subclass members. 190. The named plaintiffs will fairly and adequately represent and advance the interests of the class and subclasses. By filing this action, the named plaintiffs have displayed a strong interest in vindicating the rights of all who have been similarly harmed by WVDOCR’s arbitrary and harmful actions. By seeking to remedy the violations of their constitutional rights, the named plaintiffs will also be advancing and proving the claims and rights of absent class members. 191. There are no antagonistic interests between plaintiffs and the absent members of the class, and the equitable relief sought by the named plaintiffs will benefit the class generally. 192. The named plaintiffs are represented by Mountain State Justice, Inc., a non-profit, public interest legal services firm with long and substantial expertise in class litigation on behalf of low-income West Virginians. Counsel for the putative class are knowledgeable about the conditions of confinement in correctional facilities, the rights of individuals with disabilities, and

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are skilled in conducting civil rights litigation in the federal courts, including the prosecution and management of class action litigation.
193. Defendants WVDOCR and Jividen have acted or refused to act on grounds generally applicable to the class and subclass, thereby making final equitable relief with respect to the class and subclass as a whole an appropriate remedy. B. Class B Conditions of Confinement at Western Regional Jail
194. Upon information and belief, Western Regional has housed significantly more inmates that it is designed to hold for a number of years.
195. Due to significant overcrowding at numerous regional jails, Governor Jim Justice declared a state of emergency on or about December 31, 2017, permitting the Secretary of the Department of Military Affairs and Public Safety, which includes WVDOCR, to access the West Virginia National Guard to help staff facilities.
196. Multiple news articles have documented the impact of overcrowding at the jail. In August 2018, Defendant Wolfe was quoted in the Herald-Dispatch as stating, in relation to Western Regional, “overcrowding is an issue and understaffing is an issue. Until they take care of that, it’s going to be an issue for anyone that’s there.” Hessler, Courtney, “Wolfe Dismissed as Superintendent at Western Reginal Jail,” The Herald-Dispatch (August 11, 2018). Wolfe further explained that “earlier this year, the inmate population was averaging 825 to 850 inmates for a facility designed for about 575.” Id.

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197. According to the FY2018 Annual Report for the West Virginia Regional Jail and Correctional Facility Authority,2 Western Regional Jail was designed to hold 394 inmates. Years after the facility was built, an additional 197 bunks and 167 “stackable bunks” were added, providing beds for 758 inmates in the same amount of space. Filthy Living Conditions
198. Pursuant to West Virginia Code of State Rules § 95-1-10.5, “[i]nmates shall be provided sufficient cleaning equipment to maintain their cells in a clean condition.”
199. Section 95-1-10.6 of the Code of State Rules provides that “floors shall be kept clean, dry and free of hazardous substances. Floors shall be inspected regularly throughout the day for cleanliness.”
200. Inmates housed at Western Regional are forced to live in filthy, unsanitary, and dangerous conditions, and are denied cleaning supplies to remedy the conditions.
201. Each plaintiff reports having been housed in cells with mold on the walls, ceilings, window sills, baseboards, among other areas.
202. Both Mr. Baxley and Mr. Stout were housed in cells in which water contaminated with human waste, among other things, would flow into the cell and sit stagnant for days on end.
203. In Mr. Stout’s cell, there were not sufficient beds or bedding structures for all the inmates, and thus inmates were forced to sit, stand, and sleep in the stagnant water.
204. Despite requesting cleaning supplies, each had to wait two days or more to obtain mops and other cleaning equipment.
2 This is the last annual report to be produced by the West Virginia Regional Jail and Correctional Facilities Authority, as this entity was combined in 2018 with the West Virginia Division of Corrections and the West Virginia Division of Juvenile Services to form the WVDOCR. See W. Va. Code § 15a-3-1, et seq.

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205. Mr. Jones was placed in a cell that was filled with trash, and the walls were streaked yellow and black from human waste. Upon information and belief, black mold was growing on the window sills and baseboards.
206. Mr. Jones requested a broom and mop to clean his cell for two days before receiving the necessary cleaning supplies.
207. Mr. Baxley, who is currently double-bunked in a segregation unit, has gone several weeks without receiving cleaning products, and has no opportunity to sweep or mop his cell. Lack of Bedding
208. West Virginia Code of State Rules § 95-1-10.10 requires that “[e]ach inmate shall be provided with one clean, fire retardant mattress, two (2) clean sheets, a clean pillow and clean pillow case. . . . Clean blankets shall be provided in a number appropriate to the season.”
209. All inmates are likewise entitled to a bed above floor level. W.V. C.S.R. §§ 95-18.6.d. and -8.11.b.
210. Inmates at Western Regional Jail are routinely double and triple bunked, meaning that the cells they are housed in do not have enough beds for all the inmates held in the cell.
211. While inmates without a bed are sometimes provided with a mat and/or bedding structure, many are forced to sleep on the concrete floor without any bedding, sometimes for a month or longer.
212. For example, when Mr. Baxley was first admitted to Western Regional in August 2018, he was initially housed in “booking” with six other inmates in a two bed cell. Mr. Baxley was forced to sleep directly on the concrete floor with no bedding of any type.
213. Similarly, Mr. Jones was housed in a single cell with two other inmates; while Mr. Jones had access to the bed, a concrete slab anchored to the wall of the cell, the two others slept

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on the floor. One of those inmates was forced to sleep under the concrete slab that formed the sole bed in the cell. This arrangement lasted for approximately three weeks.
214. As previously noted, Mr. Stout has likewise been housed in a cell with two beds and three inmates, one of whom was forced to sleep on the floor with no mat or boat bed.
215. Inmates lucky enough to receive beds and mattresses often do not receive pillows, sheets, or blankets.
216. Mr. Baxley is currently housed with a cellmate in a single bed cell; while his cellmate does have a boat bed, he does not have a sheet, pillow, or blanket. Lack of Access to Hygiene Products
217. West Virginia Code of State Rules § 95-1-10.7 requires that inmates be provided with personal hygiene products upon admission and thereafter as needed. The hygiene products that must be provided include “soap, toothpaste, toilet paper, toothbrushes, combs, and feminine hygiene products.”
218. Inmates throughout Western Regional are routinely not provided adequate access to hygiene products.
219. Mr. Jones has gone without access to hygiene products for up to five days at a time on numerous occasions, including going without access to soap, toothbrush and toothpaste, and toilet paper.
220. In or around April 2019, Mr. Baxley, who is housed in segregation, routinely goes without access to soap (which is used for hand and body soap, as well as shampoo and conditioner) or showers for approximately four days in a row.
221. Inmates are routinely forced to go multiple days without toilet paper.

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222. In or around February 2019, Mr. Baxley had gone four days without toilet paper, despite repeated requests to the Correctional Officers.
223. In or around April 2019, Mr. Jones had gone for two days without toilet paper, despite repeated requests to the Correctional Officers. Lack of Access to Laundry
224. Pursuant to West Virginia Code of State Rules § 95-1-10.13, laundry service is to be provided daily for undergarments and at least every other day for outer garments, or as appropriate. Similarly, laundry service is to be provided for bedding at least weekly. W. Va. C. S. R. § 95-1-10.12. Inmates are to receive clean towels and washcloths at least three (3) times a week. W. Va. C.S.R. § 95-1-10.11.
225. Inmates in Western Regional do not receive appropriate laundry services. 226. Inmates who send garments out to be laundered do not receive them back. 227. Inmates routinely are forced to hand wash their garments in the sinks in their cells without detergent and dry those garments in their cells by hanging them on beds or other structures. 228. For example, when Mr. Jones was admitted to Western Regional, he was not provided with a towel, washcloth, or laundry bag. Mr. Jones had to wash his own clothing in the sink without detergent, and hang the clothes to dry in his cell. 229. Mr. Stout was in Pod A-5 for approximately two months in or around September and October 2018. During that period, he was not able to send any items out to be laundered. 230. Mr. Baxley’s clothing has never been laundered by the facility since he was admitted in August 2018; to date, his only ability to clean his jail garb, as well as his bedding and towel, is to wash them in the sink in his solitary confinement cell. Class B Allegations

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231. Class B includes all persons who were at any time on or after December 18, 2018, inmates housed at Western Regional Jail and Correctional Facility, in Barboursville, West Virginia.
232. Class B is so numerous that joinder of all members is impracticable. 233. Members of Class B are fluid, as individual members are admitted into Western Regional daily, and many members are subsequently released from the jail or transferred to another jail or prison facility. 234. There are questions of law or fact common to the class. 235. Class B common questions of fact include whether inmates at Western Regional have been forced to sleep on the floor without mats and/or other appropriate bedding, and have access to hygiene products, cleaning supplies, and the ability to do laundry, and whether the conditions of the facility violate the minimal standards of decency required to pass constitutional muster. 236. Common questions of law applicable to Class B include whether Defendants acted with deliberate indifference to the health and safety of inmates in administering the conditions of confinement at said facility. 237. The claims of the named plaintiffs are typical of the claims of the class as a whole. They have been subjected to and suffered injury as the result of the same policies and/or lack of policies, and same practices in the various facilities as the absent class and subclass members. 238. The named plaintiffs will fairly and adequately represent and advance the interests of the class and subclasses. By filing this action, the named plaintiffs have displayed a strong interest in vindicating the rights of all who have been similarly harmed by Defendants arbitrary and harmful actions. By seeking to remedy the violations of their constitutional rights, the named

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plaintiffs will also be advancing and proving the claims and rights of absent class members. 239. There are no antagonistic interests between plaintiffs and the absent members of
the class, and the equitable relief sought by the named plaintiffs will benefit the class generally. 240. The named plaintiffs are represented by Mountain State Justice, Inc., a non-profit,
public interest legal services firm with long and substantial expertise in class litigation on behalf of low-income West Virginians. Counsel for the putative class are knowledgeable about the conditions of confinement in correctional facilities, the rights of individuals with disabilities, and are skilled in conducting civil rights litigation in the federal courts, including the prosecution and management of class action litigation.
241. Defendants WVDOCR, Jividen and Searls have acted or refused to act on grounds generally applicable to the class, thereby making final equitable relief with respect to the class as a whole an appropriate remedy.
CLAIMS COUNT I VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEED (42 U.S.C. § 1983) 242. Plaintiffs incorporate the proceeding paragraphs by reference. 243. Plaintiffs3 bring this claim on behalf of themselves and all similarly situated inmates, i.e., all inmates admitted to jails in West Virginia during the class period who had a discernible and treatable health condition. 244. Defendants Commissioner Jividen and WVDOCR have violated the Eighth Amendment right of convicted inmates to be free from cruel and unusual punishment, and the
3 This Count includes all Plaintiffs other than Mr. Stout.

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Fourteenth Amendment right of pretrial detainees to be free from punishment without due process, by acting with deliberate indifference to the serious medical needs of plaintiffs and similarly situated inmates.
245. As described herein, jails in West Virginia routinely fail to promptly provide necessary medical and mental health treatment to inmates upon admission.
246. Defendant Jividen, as Commissioner of the WVDOCR, and Defendant WVDOCR are charged with establishing, monitoring, and enforcing policies and procedures that ensure constitutional confinement and treatment of all inmates in the custody of the WVDOCR.
247. Defendant Jividen and Defendant WVDOCR, while acting under color of state law, has been deliberately indifferent to the serious medical needs of Plaintiffs and other similarly situated inmates by failing to establish, monitor, and/or enforce policy directives and operational procedures to ensure that inmates admitted to jails in West Virginia receive prompt treatment for their medical and mental health conditions.
248. The actions and/or inactions of said Defendants violate clearly established law. 249. Plaintiffs and other similarly situated inmates have suffered harm as the direct and/or proximate result of Defendants’ deliberate indifference to their serious medical needs, including by suffering physical, mental, and emotional injuries, as well as being denied the ability to participate in the daily activities of jail life. 250. The actions of Defendants were committed under the color of state law, and were unreasonable, deliberate, and deprived Plaintiffs and other similarly situated inmates of clearly established constitutional rights of which a reasonable prison administrator should have known pursuant to the Eighth and Fourteenth Amendments to the United States Constitution.

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WHEREFORE, Plaintiffs, on behalf of themselves and other similarly situated inmates, respectfully request that the Court:
(a) Certify the class pursuant to Federal Rule of Civil Procedure 23; (b) Declare that Defendants’ actions and/or inactions as stated herein violate
the Eighth and Fourteenth Amendments to the United States Constitution; (c) Enjoin Defendants from all unconstitutional practices as set forth herein, and require Defendants to implement or enforce policies, procedures, and practices necessary to ensure prompt medical and mental health care is provided to all inmates admitted to a jail in West Virginia, and provide the training, equipment and supplies necessary to all relevant employees to ensure those policies and practices are implemented with fidelity; (d) Award attorney’s fees and costs incurred during the course of this litigation, pursuant to 42 U.S.C. § 1988; and (e) Grant such other and further relief to which plaintiffs or the class or subclass members may be entitled in law or equity.
COUNT II VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
(42 U.S.C. § 12132) 251. Plaintiffs incorporate the proceeding paragraphs by reference. 252. Plaintiffs4 bring this claim on behalf of themselves and a subclass of all similarly situated inmates, i.e., all inmates admitted to jails in West Virginia within the class period who, at
4 This Count includes all Plaintiffs other than Mr. Stout.

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the time of admission, met the standards of being a qualified individual with a disability under the ADA.
253. Title II of the ADA, 42 U.S.C. § 12132, provides that “no qualified individual with a disability shall, by reason of disability, be excluded from any participation in or be denied the benefits of the servicers, programs, or activities of a public entity, or be subject to discrimination by such entity.”
254. Defendant WVDOCR is a public entity subject to and governed by requirements and prohibitions of Title II of the ADA.
255. In violation of the ADA and 28 C.F.R. § 35.130(b), Defendants WVDOCR and Jividen have committed and are continuing to commit unlawful acts of discrimination, including:
(a) failing to afford qualified individuals with disabilities an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (b) providing qualified individuals with disabilities with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; (c) utilizing criteria or methods of administration that have: (i) the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; and (ii) the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.

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(d) Failing to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability; and
(e) Imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity.
256. Plaintiffs and the absent members of the class are qualified persons with disabilities protected against discrimination on the basis of their disabilities by the Americans with Disability Act.
257. As alleged herein, by failing to implement a policy or procedure to provide appropriate medical and mental health services immediately upon entry to the State’s jails, Defendants WVDOCR and Jividen have previously and continue to violate Title II of the ADA and its implementing regulations, through a pattern and practice of discrimination; inadequate and discriminatory methods of state-wide administration and supervision; a continuing pattern and practice of deliberate indifference; and violation of the reasonable accommodation requirement of federal law.
258. Therefore, Defendants WVDOCR and Jividen have discriminated and continue to discriminate against plaintiffs and the absent members of the subclass in violation of 42 U.S.C. § 12132 and other substantive requirements and prohibitions of the ADA and its implementing regulations.
WHEREFORE, Plaintiffs, on behalf of themselves and other similarly situated individuals, respectfully request that this Court:

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(a) Certify the subclass pursuant to Federal Rule of Civil Procedure 23; (b) Declare defendants in violation of the federal laws as explained above; (c) Enjoin defendants’ illegal discrimination and continuing violations of law,
and require implementation of policies and procedures that protect inmates’ rights under the ADA, including but not limited to creating a fully staffed ADA compliance office within WVDOCR, which is tasked with monitoring and ensuring the rights of inmates with qualifying disabilities are being met; (d) Award attorney’s fees and costs incurred during the course of this litigation, pursuant to 42 U.S.C. § 1988; and (e) Grant such other and further relief to which plaintiffs or the class or subclass members may be entitled in law or equity.
COUNT III VIOLATIONS OF THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION PHYSICAL CONDITIONS OF CONFINEMENT
(42 U.S.C. § 1983) 259. Plaintiffs incorporate the proceeding paragraphs by reference. 260. Plaintiffs Baxley, Jones, and Stout bring this claim on behalf of themselves and a class of all similarly situated individuals, i.e., all inmates admitted to Western Regional Jail from December 18, 2018 and prospectively. 261. Defendants, while acting under the color of law, violated the Eight Amendment right of convicted inmates to be free from cruel and unusual punishment, and the Fourteenth Amendment right of pretrial detainees to be free of punishment without due process, by denying Plaintiffs and all similarly situated inmates the minimal civilized measure of life’s necessities.

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262. As described herein, Plaintiffs and all similarly situated inmates at Western Regional have suffered and continue to suffer serious deprivations of basic human necessities, including sanitary living conditions, basic hygiene products such as soap and toilet paper, a bed to sleep on with basic bedding, and access to basic cleaning supplies and laundry facilities.
263. Defendants imposed and/or permitted these conditions despite these conditions not being reasonably related to a legitimate non-punitive governmental objective.
264. Defendants were deliberately indifferent to the health, safety, and other basic needs as described herein of Plaintiffs and all similarly situated inmates, having been notified of and having actual knowledge of such conditions and deliberately taking no action to remedy them in a timely or appropriate manner.
265. The actions of the Defendants were in violation of clearly established law. 266. The Eighth Amendment to the United States Constitution prohibits the cruel and unusual punishment of inmates, including through depriving inmates of basic human needs. 267. The Fourteenth Amendment to the United States Constitution forbids punishing pretrial detainees without due process of law, including by imposing arbitrary conditions which are not reasonably related to a non-punitive governmental purpose. 268. During the time period at issue, it was clearly established that the serious deprivation of basic human needs as described herein violated the Eighth and Fourteenth Amendments to the United States Constitution. 269. As a direct or proximate result of the Defendants’ unconstitutional actions or inactions, Plaintiffs and other similarly situated inmates suffered harm including physical pain; loss of sleep; development of medical conditions, including septic infections, due to the unsanitary conditions; and embarrassment, humiliation, anxiety, and emotional distress.

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270. The actions of the Defendants were committed under the color of state law, and were unreasonable, deliberate, and deprived Plaintiffs and other similarly situated inmates of clearly established constitutional rights of which a reasonable prison administrator should have known.
WHEREFORE, Plaintiffs, on behalf of themselves and other similarly situated inmates, request that the Court:
(a) Certify the class pursuant to Federal Rule of Civil Procedure 23; (b) Declare that Defendants’ actions and/or inactions as stated herein violate
the Eighth and Fourteenth Amendments to the United States Constitution; (c) Enjoin Defendants from engaging in unconstitutional practices as set forth
herein, and require Defendants to implement or enforce policies, procedures, and practices necessary to ensure the minimal civilized measure of life’s necessities are provided to all inmates housed in Western Regional Jail; (d) Award attorney’s fees and costs incurred during the course of this litigation, pursuant to 42 U.S.C. § 1988; and (e) Grant such other and further relief to which plaintiffs or the class or subclass members may be entitled in law or equity.
Respectfully Submitted, JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on behalf of themselves and others similarly situated, By Counsel:

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/s/ Lydia C. Milnes Lydia C. Milnes (State Bar No. 10598) Jennifer S. Wagner (State Bar No. 10639) Mountain State Justice, Inc. 325 Willey Street Morgantown, WV 26505 Phone: (304) 326-0188 Facsimile: (304) 326-0189 lydia@msjlaw.org jennifer@mjslaw.org Counsel for Plaintiffs