U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:17−cv−00949

BROWN

Snead v. CoreCivic of Tennessee, LLC Assigned to: District Judge Aleta A. Trauger Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 06/15/2017 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Wendy Snead

represented by Bryant B. Kroll The Blackburn Firm, PLLC 213 Fifth Avenue North Suite 300 Nashville, TN 37219 (615) 254−7770 Fax: (615) 895−7272 Email: bkroll@wgaryblackburn.com ATTORNEY TO BE NOTICED

Jeffery S. Roberts Jeffery S. Roberts and Associates, PLC 213 Fifth Avenue North Suite 300 Nashville, TN 37219 (615) 425−4400 Fax: (615) 425−4401 Email: jeff@middletninjury.com ATTORNEY TO BE NOTICED

R. Joshua McKee Jeffery S. Roberts and Associates, PLC 213 Fifth Avenue North Suite 300 Nashville, TN 37219 (615) 425−4400 Fax: (615) 425−4401 Email: rjm@rjmckeelaw.com ATTORNEY TO BE NOTICED

W. Gary Blackburn The Blackburn Firm, PLLC 213 Fifth Avenue North Suite 300 Nashville, TN 37219 (615) 254−7770 Fax: (866) 895−7272 Email: gblackburn@wgaryblackburn.com ATTORNEY TO BE NOTICED

Plaintiff
Edward Moredock individually and on behalf of all others similarly situated

represented by Bryant B. Kroll (See above for address) ATTORNEY TO BE NOTICED

Jeffery S. Roberts (See above for address) ATTORNEY TO BE NOTICED

R. Joshua McKee (See above for address) ATTORNEY TO BE NOTICED
Case: 3:17-cv-949 As of: 01/17/2020 02:45 PM CST 1 of 8

W. Gary Blackburn (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
CoreCivic of Tennessee, LLC formerly known as Corrections Corporation of America

represented by Erin Palmer Polly Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6700 Email: Erin.Polly@butlersnow.com ATTORNEY TO BE NOTICED
Jason W. Callen Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6700 Fax: (615) 651−6701 Email: Jason.Callen@butlersnow.com ATTORNEY TO BE NOTICED
Joseph F. Welborn , III Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6700 Email: Joe.Welborn@butlersnow.com ATTORNEY TO BE NOTICED
Paige Ayres Nutini Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6780 Email: paige.nutini@butlersnow.com TERMINATED: 01/29/2018
Terrence M. McKelvey Butler Snow LLP (Nashville) The Pinnacle at Symphony Place 150 Third Avenue South Suite 1600 Nashville, TN 37201 (615) 651−6610 Fax: (615) 651−6701 Email: terrence.mckelvey@butlersnow.com ATTORNEY TO BE NOTICED

Date Filed # Docket Text

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06/16/2017 06/16/2017

1 COMPLAINT against CoreCivic of Tennessee, LLC (Filing fee $400, Receipt number 0650−2463180), filed by Snead Wendy. (Attachments: # 1 Exhibit A − Hearing Transcript, # 2 Attachment Civil Cover Sheet, # 3 Attachment Summons)(gb) (Entered: 06/16/2017)
2 NOTICE of Corporate Disclosure Statement filing requirement. (gb) (Entered: 06/16/2017)

06/16/2017

3 NOTICE/INFORMATION regarding Consent of the Parties to the Magistrate Judge. (gb) (Entered: 06/16/2017)

06/16/2017

TN State Bar status verified as active for W. Gary Blackburn, Bryant B. Kroll, Jeffery S. Roberts, R. Joshua McKee. (gb) (Entered: 06/16/2017)

06/16/2017
06/16/2017 07/07/2017 07/07/2017

NOTICE TO COUNSEL R. Joshua McKee: WITHIN 21 DAYS, counsel shall be admitted to practice. The application for admission is available on the website at http://www.tnmd.uscourts.gov/files/applicationforadmission3.pdf (LR 83.01(a)). Admission due by 7/7/2017. (gb) (Entered: 06/16/2017)
4 NOTICE of Initial Case Management Conference set for 9/25/2017 at 01:00 PM in Chambers 825 before District Judge Aleta A. Trauger. (gb) (Entered: 06/16/2017)
5 SUMMONS returned executed by Wendy Snead. CoreCivic of Tennessee, LLC served on 6/21/2017. (Blackburn, W.) (Entered: 07/07/2017)
6 NOTICE of Appearance by Joseph F. Welborn, III on behalf of CoreCivic of Tennessee, LLC (Welborn, Joseph) (Entered: 07/07/2017)

07/07/2017

7 NOTICE of Appearance by Erin Palmer Polly on behalf of CoreCivic of Tennessee, LLC (Polly, Erin) (Entered: 07/07/2017)

07/07/2017 07/07/2017 07/10/2017 07/13/2017 07/18/2017

8 NOTICE of Appearance by Jason W. Callen on behalf of CoreCivic of Tennessee, LLC (Callen, Jason) (Entered: 07/07/2017)
9 NOTICE of Appearance by Paige Ayres Nutini on behalf of CoreCivic of Tennessee, LLC (Nutini, Paige) (Entered: 07/07/2017)
TN State Bar status verified as active for Joseph F. Welborn, III, Erin Palmer Polly, Jason W. Callen and Paige Ayres Nutini. (gb) (Entered: 07/10/2017)
10 ANSWER to 1 Complaint by CoreCivic of Tennessee, LLC.(Polly, Erin) (Entered: 07/13/2017)
11 CORPORATE DISCLOSURE STATEMENT filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 07/18/2017)

09/20/2017 12 PROPOSED CASE MANAGEMENT ORDER Initial filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 09/20/2017)

09/25/2017 09/25/2017 09/25/2017
10/26/2017 10/27/2017

Minute Entry for proceedings held before District Judge Aleta A. Trauger: Case Management Conference held on 9/25/2017. Case will be consolidated with Case no. 3:17−0958. (kb) (Entered: 09/25/2017)
By agreement, the Motion to Consolidate Cases in 3:17−cv−00958 was granted. See Docket Entry No. 16. All filings hereafter shall be made under the earlier case number, and the Initial Case Management Order being entered today in Case Number 3:17−cv−00949 shall apply to both cases. (mg) (Entered: 09/25/2017)
13 INITIAL CASE MANAGEMENT ORDER: Amended Pleadings due by 1/25/2018. Discovery due by 5/1/2018. Dispositive Motions due by 6/1/2018. Signed by District Judge Aleta A. Trauger on 9/25/17. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb) (Entered: 09/25/2017)
14 MOTION for Extension of Time to File First Amended Complaint by Wendy Snead. (Blackburn, W.) (Entered: 10/26/2017)
15 AMENDED COMPLAINT against CoreCivic of Tennessee, LLC, filed by Wendy Snead. (Attachments: # 1 Exhibit A: Transcript of King Hearing)(Blackburn, W.) (Entered: 10/27/2017)

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10/27/2017
11/10/2017 12/15/2017 12/20/2017 12/20/2017 12/21/2017 12/21/2017 12/22/2017 01/15/2018 01/24/2018 01/26/2018 02/01/2018 02/01/2018
02/01/2018 02/02/2018 02/19/2018 03/01/2018 04/13/2018 05/01/2018

16 ORDER granting 14 Motion for Extension of Time to File Amended Complaint. Signed by District Judge Aleta A. Trauger on 10/27/2017. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 10/27/2017)
17 ANSWER to 15 Amended Complaint by CoreCivic of Tennessee, LLC.(Polly, Erin) (Entered: 11/10/2017)
18 MOTION for Extension of Time to File Motion for Class Certification by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 12/15/2017)
19 MOTION to Certify Class by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 12/20/2017)
20 MEMORANDUM in Support of 19 MOTION to Certify Class filed by Edward Moredock, Wendy Snead . (Blackburn, W.) (Entered: 12/20/2017)
21 ORDER granting 18 Motion for Extension of Time to File. Extension to 12/20/17. Signed by District Judge Aleta A. Trauger on 12/21/17. (gb) (Entered: 12/21/2017)
22 MOTION for Extension of Time to File Response/Reply as to 19 MOTION to Certify Class by CoreCivic of Tennessee, LLC. (Welborn, Joseph) (Entered: 12/21/2017)
23 ORDER granting 22 Motion for Extension of Time to File Response/Reply as to 19 MOTION to Certify Class. Extension to 2/19/2018. Signed by District Judge Aleta A. Trauger on 12/22/17. (gb) (Entered: 12/22/2017)
24 Joint MOTION To Extend Deadlines re 13 Case Management Order, by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 01/15/2018)
25 ORDER granting 24 Joint MOTION To Extend Deadlines as requested. Signed by District Judge Aleta A. Trauger on 1/24/18. (gb) (Entered: 01/24/2018)
26 NOTICE by CoreCivic of Tennessee, LLC of Withdrawal of Counsel (Welborn, Joseph) (Entered: 01/26/2018)
27 MOTION to Supplement 20 Memorandum in Support of Class Certification and To Permit Late Filing by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 02/01/2018)
28 NOTICE of Filing by Edward Moredock, Wendy Snead re 20 Memorandum in Support (Attachments: # 1 Attachment Excerpts from Deposition of Wendy Snead, # 2 Attachment Excerpts from Deposition of Edward Moredock, # 3 Attachment Affidavit of Jennifer King & Ex. A, # 4 Attachment Declaration of Billie Blanchard, # 5 Attachment Affidavit of Susan Becker & Ex. A, # 6 Attachment Affidavit of Leighanne Shye & Exhibits, # 7 Attachment Affidavit of James Nelson & Ex. A, # 8 Attachment Declaration of Danny Baye, # 9 Attachment Affidavit of Michael Quinn, # 10 Attachment Declaration of Dawn Meyers, # 11 Attachment Declaration of Bryant Kroll and Exhibits)(Blackburn, W.) (Entered: 02/01/2018)
29 SUPPLEMENT filed by Edward Moredock, Wendy Snead re 20 Memorandum in Support. (Blackburn, W.) (Entered: 02/01/2018)
30 ORDER granting 27 Motion to Permit Late Filing and Supplement Memorandum. Signed by District Judge Aleta A. Trauger on 2/2/18. (gb) (Entered: 02/02/2018)
31 RESPONSE in Opposition re 19 MOTION to Certify Class filed by CoreCivic of Tennessee, LLC. (Attachments: # 1 Exhibit A Unpublished Cases)(Polly, Erin) (Entered: 02/19/2018)
32 REPLY to Response to Motion re 19 MOTION to Certify Class filed by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 03/01/2018)
33 Letter from Albert Batalona requesting docket sheet. (Docket sheet sent by regular mail.) (gb) (Entered: 04/16/2018)
34 MOTION for Extension of Time to File Disclosure of Experts by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 05/01/2018)

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05/02/2018

35 ORDER granting 34 Motion for Extension of Time to File Disclosure of Experts. A new deadline will be set by subsequent order. Signed by District Judge Aleta A. Trauger on 5/2/18. (gb) (Entered: 05/02/2018)

06/27/2018

36 MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 6/27/2018. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw) (Entered: 06/28/2018)

06/27/2018

37 ORDER: The plaintiffs' Motion for Class Certification (Doc. No. 19) is GRANTED IN PART AND DENIED IN PART, as follows. The motion is DENIED, insofar as it seeks certification of a "Denied Prescription" Class and a "Denied Medical Attention" Class. The motion is DENIED, insofar as it seeks certification of a class that incorporates any current inmates at any facility. The motion is GRANTED, insofar as it seeks certification of a "Scabies Class," defined to include all former inmates of Metro Davidson County Detention Facility ("MDCDF"), who are currently not incarcerated and who suffered a skin rash consistent with a scabies infestation while confined at MDCDF and were denied treatment or whose delayed treatment by the defendant caused their condition to worsen, since October 1, 2016. It is further ORDERED that this case is set for a case management conference on July 11, 2018 at 4:00 p.m. Signed by District Judge Aleta A. Trauger on 6/27/2018. (jw) (Entered: 06/28/2018)

07/16/2018

38 ORDER: This case was set for a case management conference on July 11, 2018 at 4:00 p.m. By 4:15 p.m., plaintiffs' counsel had still not arrived for the case management conference. Upon calling the office, Judge Trauger's Courtroom Deputy was told that the conference had not made it to the calendars at the plaintiffs' firm. It is hereby ORDERED that the parties shall confer and file a proposed case management order, setting necessary deadlines, after which the court will set a case management conference to discuss the proposed order. Signed by District Judge Aleta A. Trauger on 7/16/18. (gb) (Entered: 07/16/2018)

08/02/2018 39 PROPOSED CASE MANAGEMENT ORDER Amended filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 08/02/2018)

08/03/2018

40 AMENDED CASE MANAGEMENT ORDER: Discovery due by 3/1/2019. Dispositive Motions due by 9/6/2019. Signed by District Judge Aleta A. Trauger on 8/3/18. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb) (Entered: 08/03/2018)

04/09/2019

41 MOTION to Modify Scheduling Order by Edward Moredock, Wendy Snead. (Attachments: # 1 Exhibit 1: Declaration of Bryant Kroll, # 2 Exhibit 2: Email to Defendants, # 3 Exhibit 3: Defendant's Responses to Discovery)(Blackburn, W.) (Entered: 04/09/2019)

04/09/2019

42 ORDER: Motion Hearing set for 4/19/2019 11:00 AM in Chambers 825 before District Judge Aleta A. Trauger with lead counsel present re 41 Motion to Modify Scheduling Order. Signed by District Judge Aleta A. Trauger on 4/9/19. (gb) (Entered: 04/09/2019)

04/18/2019 43 RESPONSE in Opposition re 41 MOTION to Modify Scheduling Order filed by CoreCivic of Tennessee, LLC. (Welborn, Joseph) (Entered: 04/18/2019)

04/19/2019

Minute Entry for proceedings held before District Judge Aleta A. Trauger: Case Management Conference held on 4/19/2019. Joint mediation report due 7/10/19. (Hearing lasted :30)(kb) (Entered: 04/19/2019)

04/19/2019

44 ORDER: A case management conference was held with counsel for the parties on April 19, 2019. The following are hereby ORDERED: 1. The plaintiff's Motion to Modify Scheduling Order (Docket No. 41 ) is GRANTED IN PART. The parties will negotiate the outstanding requests for production in an attempt to resolve their differences as to the appropriate scope of this discovery and shall file a joint notice with the court by May 3, 2019 that states whether or not they have been able to resolve their differences. 2. The expert witness deadlines and dispositive motion deadlines set out in the Amended Case Management Order entered August 3, 2018 (Docket No. 40 ) shall remain in effect. 3. The parties shall file a joint mediation report by July 10, 2019. Signed by District Judge Aleta A. Trauger on 4/19/2019. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg) (Entered: 04/19/2019)

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04/19/2019
05/01/2019 05/02/2019 05/03/2019
05/17/2019 05/17/2019 06/26/2019 06/26/2019 07/10/2019 08/28/2019 08/29/2019 10/09/2019 10/10/2019 10/10/2019 10/10/2019 10/10/2019 10/10/2019 10/10/2019

45 ORDER SETTING CASE FOR TRIAL: Jury Trial set for 3/17/2020 at 9:00 AM in Courtroom 873 before District Judge Aleta A. Trauger. Pretrial Conference set for 3/13/2020 at 1:30 PM in Chambers 825 before District Judge Aleta A. Trauger. Joint Proposed Pretrial Order due by 3/10/2020; Exhibit List due by 3/10/2020; and Witness List due by 3/10/2020. The trial of this case is expected to last 5−6 days. If the case settles closer to trial than two business days, the cost of summoning the jury may be assessed against the parties. Signed by District Judge Aleta A. Trauger on 4/19/2019. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg) (Entered: 04/19/2019)
46 Joint MOTION To Enlarge Certain Deadlines by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 05/01/2019)
47 ORDER granting 46 Motion to Enlarge Certain Deadlines, for all agreed extensions. Signed by District Judge Aleta A. Trauger on 5/2/19. (gb) (Entered: 05/02/2019)
48 MOTION to correct previously filed motion and extend CoreCivic's expert disclosure deadline re 47 Order on Motion for Miscellaneous Relief, 46 Joint MOTION To Enlarge Certain Deadlines by CoreCivic of Tennessee, LLC. (Welborn, Joseph) (Entered: 05/03/2019)
49 ORDER granting 48 Motion to correct previously filed motion and extend CoreCivic's expert disclosure deadline, for extension as requested. Signed by District Judge Aleta A. Trauger on 5/17/19. (gb) (Entered: 05/17/2019)
50 NOTICE by CoreCivic of Tennessee, LLC re 44 Order on Motion for Miscellaneous Relief, Regarding Agreement on Requests for Production (Welborn, Joseph) (Entered: 05/17/2019)
51 MOTION for Extension of Time to Complete Discovery /Enlargement of The Expert Disclosure Deadline by CoreCivic of Tennessee, LLC. (Welborn, Joseph) (Entered: 06/26/2019)
52 ORDER granting 51 Motion for Enlargement of the Expert Disclosure Deadline. Extension to 8/23/19. Signed by District Judge Aleta A. Trauger on 6/26/19. (gb) (Entered: 06/26/2019)
53 JOINT MEDIATION REPORT filed by CoreCivic of Tennessee, LLC. (Welborn, Joseph) (Entered: 07/10/2019)
54 MOTION for Extension of Time to File Motion for Enlargement of the Dispositive Motion Deadline by CoreCivic of Tennessee, LLC. (Welborn, Joseph) (Entered: 08/28/2019)
55 ORDER granting 54 MOTION for Enlargement of the Dispositive Motion Deadline. Extension to 10/10/2019. Signed by District Judge Aleta A. Trauger on 8/29/19. (gb) (Entered: 08/29/2019)
56 MOTION for Leave to File Document Under Seal by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/09/2019)
57 ORDER granting 56 Motion for Leave to File Document Under Seal. Signed by District Judge Aleta A. Trauger on 10/10/19. (gb) (Entered: 10/10/2019)
58 MOTION for Summary Judgment by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)
59 Sealed Document Memorandum of Law in Support of Motion for Summary Judgment filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)
60 STATEMENT of facts filed by CoreCivic of Tennessee, LLC in support of 58 Motion for Summary Judgment. (Polly, Erin) (Entered: 10/10/2019)
61 DECLARATION of James Bridges, M.D. filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)
62 DECLARATION of Keith Ivens, M.D. filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)

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10/10/2019 10/10/2019 10/10/2019
10/10/2019
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12/02/2019 12/02/2019

63 DECLARATION of Jerry Wardlaw filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)
64 Sealed Document (Declaration of John Alan Zic, M.D.) filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)
65 DECLARATION of John Rychen filed by CoreCivic of Tennessee, LLC. (Attachments: # 1 Exhibit Rychen Declaration Ex A − Policy 13−40, # 2 Exhibit Rychen Declaration Ex B − Policy 13−44, # 3 Exhibit Rychen Declaration Ex C − Policy13−47, # 4 Exhibit Rychen Declaration Ex D − Policy 13−50, # 5 Exhibit Rychen Declaration Ex E − Policy 13−70, # 6 Exhibit Rychen Declaration Ex F − Policies 13−71, 13−71A6, 13−71A26, # 7 Exhibit Rychen Declaration Ex G − Policy 13−76, # 8 Exhibit Rychen Declaration Ex H − Policy 13−77, # 9 Exhibit Rychen Declaration Ex I − Policy 13−80)(Polly, Erin) (Entered: 10/10/2019)
66 Sealed Document (Notice of Filing Exhibits in Support of D.E. 58 Motion for Summary Judgment) filed by CoreCivic of Tennessee, LLC. (Attachments: # 1 Exhibit Notice of Filing Ex A − Expert Declaration of Alan Boyd, MD, # 2 Exhibit Notice of Filing Ex B − Depo Excerpts of Alan Boyd, MD, # 3 Exhibit Notice of Filing Ex C − Depo Excerpts of Juli Horton, MD, # 4 Exhibit Notice of Filing Ex D − Depo Excerpts of Edward Moredock, # 5 Exhibit Notice of Filing Ex E − Depo Excerpts of Wendy Snead)(Polly, Erin) (Entered: 10/10/2019)
67 MOTION for Hearing re 58 MOTION for Summary Judgment (ORAL ARGUMENT) by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)
68 MOTION to Decertify Class Action by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)
69 Sealed Document (Memorandum in Support of Motion to Decertify Class Action) filed by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 10/10/2019)
70 Sealed Document (Notice of Filing in Support of [D.E. 68] Motion to Decertify Class Action) filed by CoreCivic of Tennessee, LLC. (Attachments: # 1 Exhibit Notice of Filing Ex. A, # 2 Exhibit Notice of Filing Ex. B, # 3 Exhibit Notice of Filing Ex. C, # 4 Exhibit Notice of Filing Ex. D, # 5 Exhibit Notice of Filing Ex. E)(Polly, Erin) (Entered: 10/10/2019)
71 MOTION for Extension of Time to File Response/Reply as to 58 MOTION for Summary Judgment, 68 MOTION to Decertify Class Action (Unopposed by Defendant) by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 11/07/2019)
72 ORDER granting 71 Motion for Extension of Time to File Response for extensions as requested. Signed by District Judge Aleta A. Trauger on 11/8/19. (gb) (Entered: 11/08/2019)
73 Second MOTION for Extension of Time to File Response/Reply as to 58 MOTION for Summary Judgment , 68 MOTION to Decertify Class Action (Unopposed by Defendant) by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 11/22/2019)
74 ORDER granting 73 Motion for Extension of Time to File Response re 58 MOTION for Summary Judgment and 68 MOTION to Decertify Class Action. Signed by District Judge Aleta A. Trauger on 11/22/2019. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 11/22/2019)
75 NOTICE of Appearance by Terrence M. McKelvey on behalf of CoreCivic of Tennessee, LLC (McKelvey, Terrence) (Entered: 12/02/2019)
76 ORDER RESETTING CASE FOR TRIAL: Jury Trial set for 5/5/2020 09:00 AM in Courtroom 873 before District Judge Aleta A. Trauger. Pretrial Conference set for 5/1/2020 01:30 PM in Chambers 825 before District Judge Aleta A. Trauger. Exhibit List due by 4/28/2020. Witness List due by 4/28/2020. Proposed Pretrial Order due by 4/24/2020. Signed by District Judge Aleta A. Trauger on 12/2/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb) (Entered: 12/03/2019)

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77 MOTION for Extension of Time to File Response/Reply as to 58 MOTION for Summary Judgment, 68 MOTION to Decertify Class Action (Unopposed by Defendants) by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 12/09/2019)
78 ORDER granting 77 Motion for Extension of Time to File Responses. Extension to 12/23/2019. Signed by District Judge Aleta A. Trauger on 12/10/19. (dt) (Entered: 12/10/2019)
79 RESPONSE in Opposition re 58 MOTION for Summary Judgment filed by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 12/23/2019)
80 RESPONSE filed by Edward Moredock, Wendy Snead re 60 Statement of facts filed by CoreCivic of Tennessee, LLC . (Attachments: # 1 Exhibit Ex. A − Tennessean Article, # 2 Exhibit Ex. B − WSMV Article)(Blackburn, W.) (Entered: 12/24/2019)
81 NOTICE of Filing by Edward Moredock, Wendy Snead re 80 Response (Non−Motion or 2255 Petition) (Attachments: # 1 Attachment 1. Deposition of Alan Boyd, # 2 Attachment 2. Deposition of Julie Horton, # 3 Attachment 3. Deposition of Dr. Zic, # 4 Attachment 4. Deposition of Wendy Snead, # 5 Attachment 5. Deposition of Edward Moredock, # 6 Attachment 6. Declaration of Dawn Meyers, # 7 Attachment 7. James Nelson Affidavit, # 8 Attachment 8. Susan Becker Affidavit, # 9 Attachment 9. Danny Baye Declaration, # 10 Attachment 10. Billie Blanchard Declaration, # 11 Attachment 11. Leighanne Shye Declaration, # 12 Attachment 12. Declaration of Michael Quinn, # 13 Attachment 13. Jennifer King Affidavit)(Blackburn, W.) (Entered: 12/24/2019)
82 RESPONSE in Opposition re 68 MOTION to Decertify Class Action filed by Edward Moredock, Wendy Snead. (Blackburn, W.) (Entered: 12/24/2019)
TN State Bar status verified as active for Terrence M. McKelvey. (gb) (Entered: 12/27/2019)
83 MOTION for Extension of Time to File Response/Reply as to 58 MOTION for Summary Judgment , 68 MOTION to Decertify Class Action by CoreCivic of Tennessee, LLC. (Polly, Erin) (Entered: 12/30/2019)
84 ORDER granting 83 Motion for Enlargement. Signed by District Judge Aleta A. Trauger on 12/30/19. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 12/30/2019)

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE

WENDY SNEAD, individually and on )

behalf of all others similarly situated, )

) Civil Action No.

Plaintiffs. )
) CLASS ACTION

V.

)

)

CORECIVIC OF TENNESSEE, LLCf/k/a )

CORRECTIONS CORPORATION OF )

AMERICA )

)

Defendant. )
) )

CLASS ACTION COMPLAINT

COMES NOW the Plaintiffs, Wendy Snead, individually and on behalf of all others similarly situated, and for their causes of action against the Defendant would allege as follows:
PRELIMINARY STATEMENT
1. The Plaintiff and the proposed class, as defined in Paragraphs 88 et seq., include those individuals currently and formerly housed at the IVIetro-Davidson County Detention Facility in Davidson County, Tennessee, a private prison owned and operated by CoreCivic, an entity formerly doing business as Corrections Corporation of America ("CCA"). During the time of incarceration, the Plaintiff and proposed class were entirely dependent on the Defendants to provide them with access to basic health care. However, they have been, and with regard to those still incarcerated, continue to be deprived of access to basic healthcare.

Case 3:17-cv-00949 Document 1 Filed 06/16/17 Page 1 of 21 PageID #: 1

2. Plaintiff files this Class Action seeking damages on behalf of themselves and all others similarly situated due to the Defendant's deliberate indifference to their serious medical needs while they were incarcerated, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and their prohibition against cruel and unusual punishment.
3. Plaintiff and all Class IVIembers were exposed to Sarcoptes scabiei (hereafter "Scabies") caused by the spread ofparasitic mites. Scabies is most easily transmitted by skin-to-skin contact, bedding, clothing and towels. Female mites burrow under the skin, lay their eggs at the end of the tunneled burrows, and larvae hatch two to three days after the eggs are laid. The mites cause intense itching, which facilitates re-infestation and skin eruptions that transfer the mites to new hosts.
4. Defendant operates a private for-profit prison and therefore had direct control of the prisoners in its charge infected with scabies. The Defendant deliberately failed to adequately screen those entering its facility, respond to inmate requests for medical attention, treat those infested with the parasite, quarantine the infected individuals in its care, or to take any other precautions to prevent the spread of scabies outside the facility. This caused a foreseeable and preventable systematic outbreak which spread to the Plaintiff and all others similarly situated.
THE PARTIES
5. Plaintiff Wendy Snead is a citizen of the State of Tennessee and a resident of Cheatham County, Tennessee. She is a former inmate who was housed in the Defendant's facility in Davidson County.
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6. The Defendant, CoreCivic of Tennessee, LLC, f/k/a Corrections Corporation of American ("CCA"), is a limited liability company organized under the laws of the State of Tennessee, with its principal place of business located at 10 Burton Hills Blvd., Nashville, TN 37215. CoreCivic's registered agent for process in the State of Tennessee is C T Corporation System, 800 S. Gay St., Suite 2021, Knoxville, TN 37929-9710. The Defendant owns and operates the Metro-Davidson County Detention Facility, housing prisoners sentenced to confinement in the Tennessee Department of Correction. As such, CCA performs a public function traditionally reserved to the state and is therefore subject to suit under 42 U.S.C. § 1983.
JURISDICTION AND VENUE
7. This action is brought pursuant to 42 U.S.C. § 1983 seeking to redress a deprivation of the Plaintiffs' rights by the Defendants acting under color of law, which rights are secured by the Eighth Amendment to the United States Constitution.
8. This complaint concerns the violation of civil rights, and this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 1343.
9. This Court has supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(a).
10. All of the claims alleged herein arose in the Middle District of Tennessee, and Venue is therefore proper pursuant to 28 U.S.C. § 1391.
ALLEGATIONS OF FACT
11. As the allegations of this Complaint will demonstrate, the Defendant refused to provide the healthcare needed and requested by Plaintiff and members of the class. The Defendant refused to provide access to doctors and necessary medicine. When Plaintiff was finally
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provided access to a physician outside of the facility, the Defendant refused to provide Plaintiff with the medicine she was prescribed. 12. In the Winter and Spring of 2017, there was a scabies outbreak in the Defendant's 1,300bed jail facility in Nashville, Tennessee. The outbreak spread through various facilities in and around Nashville, Tennessee, which infested inmates, detainees, and those likely to come in contact with them, including court staff in Davidson County. Those infested with the parasite develop a visible rash, which was made known to the Defendant by observation and by frequent complaints, grievances, and requests for medical treatment by the inmates. 13. The scabies infestation leads to relentless and unbearable itching, especially at night. The rash results in scales, blisters, bleeding, and open sores caused by scratching. The rash caused by scabies infestation is readily distinguishable from other skin maladies due to the appearance oftrack-like burrows in the skin, which are created when female mites tunnel under the surface of the skin. Due to the severity of the itching at night, those infested with the parasite experience an inability to sleep until they have been treated and the infestation is in remission. The infestation results in permanent, visible scarring. 14. On or about December 13, 2016, Jennifer King was sent to the Defendant's facility as a pretrial detainee. She was housed within the "D Pod" for approximately one month. In January, 2017, she transferred to the "E Pod," when she started exhibiting symptoms of scabies infestation, including a visible and painful rash. 15. The Defendant houses pretrial detainees with other inmates serving sentences. There is no distinction in the conditions of their confinement. 16. Ms. King requested medical treatment and complained about the Defendant ignoring her complaints and refusing to provide medical services. Ms. King complained to the Warden,
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the Assistant Warden, the case managers, and the guards. She filed numerous grievances, all of which went unanswered and ignored by the Defendant. 17. Ms, King begged the Defendant for relief and treatment. It was not until February 2017 that she was given access to a doctor. Pursuant to the Defendant's official policy, custom, and practice of ignoring requests for medical attention, the Defendant denied that King had any medical issues despite her obvious distress and visible rash, and refused to allow her to obtain outside medical treatment. 18. Plaintiff Wendy Snead was housed in "A Pod" at the Defendant's facility for a five-month DUI sentence. Plaintiff had been charged in 2013 and had remained sober in the four years since her charge, but was still required to serve the time. 19. Approximately four months into Plaintiff Snead's sentence, Jennifer King was transferred from E Pod into A Pod. By this time. King was covered from head to toe with the visible rash and it was obvious that she had been afflicted with it for some time. The Defendant advised Mrs. King that she "was not contagious." Prior to King's arrival, no inmates in Plaintiff Snead's unit showed any symptoms of a scabies infestation. 20. One of the inmates in A Pod had attended nursing school and recognized the rash. She complained to the Defendant that the rash appeared to be a scabies infestation. 21. Ms. King was placed in an 8-person cell, in close proximity to Plaintiff Snead and others. The women in this cell quickly started developing the rash on their bodies. Other women in A Pod started developing the rash as well. 22. One inmate refused to go into the same room as King because she had seen people with scabies infestation before and knew that King had the infestation. The Defendant did nothing in response to the inmate's repeated complaints.
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23. On or about May 1,2017, a female guard employed by the Defendant searched the Internet for pictures of scabies. She stated that the rash that was spreading through the inmate population appeared to be a scabies infestation.
24. Inmates began, openly talking about the spread of the rash being a scabies infestation. In response. Guards employed by the Defendant began threatening Plaintiff and other inmates that if they mentioned the word "scabies," complained about it, or filed a grievance, they would be placed in solitary confinement. The guards informed Plaintiff and others that female inmates from E Pod, from which Mrs. King had transferred, were placed in solitary confinement for discussing the scabies infestation. In so stating, the Defendant acknowledged that inmates had been complaining about scabies in E Pod for some time prior to Mrs. King's transfer to A Pod.
25. Inmates attempted to inform their family members about the scabies infestation over the phone and asked their families to research scabies on their behalf. Because the Defendant monitors all phone calls, those inmates immediately had their phone privileges revoked, in retaliation for attempting to bring light to the epidemic.
26. On May 7, 2017, Plaintiff noticed red bumps developing on her right ami that resembled insect bites, which were accompanied by intense itching and a biting sensation.
27. On May 8,2017, the bites continued to spread and the itching intensified. Plaintiff showed a nurse, who dismissed Plaintiffs report and merely advised that Plaintiff change her soap. Plaintiff informed the nurse that she had been using the same soap for the last four months with no issues.
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28. By May 9, 2017, Plaintiffs body was covered with the bites and rash, and she requested another sick call. By M.ay 11, inmates were noisily complaining that the rash was scabies. Plaintiffs request for a sick call had still not been fulfilled.
29. Plaintiff thereafter began filing formal grievances due to the refusal of the Defendant to provide her access to medical treatment. From May 9 until her departure from the facility, Plaintiff filed seven (7) grievances in total, none of which were ever addressed by the Defendant.
30. Because of the Defendant's deliberate indifference to the grievances filed by Plaintiff and others, the women promised to file a new grievance each day until the Defendant addressed the issue, all of which were ignored or discarded by the Defendant.
31. By May 12,2017, the itching was unbearable and Plaintiff was unable to sleep. Her request for a sick call was ignored by the Defendant, and any of Plaintiff s attempts to speak about the sick call were met by the Defendant with anger and dismissal.
32. On May 13, 2017, Plaintiff was still unable to sleep and there was no response to her request for a sick call . Plaintiff feared disciplinary action if she attempted to follow through on her request for a sick call. Plaintiff, desperate for some sort of relief, broke down in tears to the Assistant Warden and begged for medical treatment, but none was ever provided.
33. Plaintiff had gone 72 hours without any sleep due to the intense itching, which was a frequent occurrence until her release. Plaintiff was physically, mentally, and emotionally tormented by the sensation of insects biting her and the inability to obtain any relief from the Defendant. She became physically ill from the stress, developing a fever and chills.
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Plaintiff attempted to obtain a sick call to handle the fever, which was refused by the Defendant. 34. On May 14, 2017, Plaintiff was unable to hug her daughter during the Mother's Day visit due to fear of spreading the rash. Plaintiff was devastated. Due to the Defendant's deliberate indifference to her medical needs and continued refusal to respond to Plaintiffs request for medical attention, Plaintiff experienced emotional distress and hopelessness. 35. On May 15, the Defendant's facility was placed on lock down for 48 hours. Plaintiff was unable to communicate with her family and still had not received any response to her request for medical attention. 36. On May 17, 2017, Plaintiff was finally able to call her family, who reported the situation to the Metro-Nashville Health Department. 37. On May 18, 2017, a Nurse Practitioner employed by the Defendant saw Plaintiff Snead and refused to acknowledge the obvious presence of scabies. Numerous inmates reported that the rash was scabies and that they begged for help. Met with the Defendant' s deliberate indifference, Plaintiffs family requested that the Health Department intervene. 38. On May 19, 2017, the Health Department scheduled an emergency dermatology appointment for Plaintiff Snead in Franklin, Tennessee. Plaintiffs dermatologist immediately diagnosed the rash as a scabies infestation and wrote a prescription for both oral and topical medications. 39. Upon her return from the doctor's appointment, the Defendant began retaliating against Plaintiff Snead. She was held at the intake building for over four (4) hours, during which time she was deprived of food. Although her physician had diagnosed and prescribed medication, Plaintiff was informed that her prescriptions would not be filled. Plaintiff was
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then placed in segregation without food, a mattress or any of her personal belongings for many hours. She was not allowed to call her family. The Defendant's retaliation towards Plaintiff was intended to intimidate Plaintiff and other inmates from filing grievances, seeking outside medical treatment, or otherwise reporting the scabies outbreak to individuals outside of the Defendant's facility. 40. Also on May 19, 2017, Ms. King made a court appearance before Judge Steve Dozier in the Davidson County Criminal Court. A copy of the transcript is attached as Exhibit A. Ms. King informed the Court that she was enrolled in the Sheriffs Anti Violence Effort ("SAVE") program but that she could not continue because she had a rash covering her body. She stated that she had the rash for four months. Judge Dozier asked Ms. King what programs she was unable to attend because of the rash:
"The Court: What's the - what has this kept you going through? M.s. King: Everything, because they are The Court: You can't go to the SAVE program? Ms. King: Right. They are like-I started a couple of weeks and then I had to
go to Med-Op and they tried to get it to heal up. So I just really need to go to the hospital, I do." 41. Ms. King was released on probation on or about May 21, 2017. She immediately went to the Baptist Hospital ER and was diagnosed with scabies. The ER doctor at Baptist prescribed her the medications needed to eradicate the scabies infestation, which she had been suffering from for over four and a half months while in the Defendant's custody. 42. On IVIay 20, 2017, Plaintiff Snead was given a single dose of medicine m the morning. She was still denied clean clothes and sheets, phone privileges, shower facilities, and any contact with her family for several days. The intentional deprivation of clean sheets,
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clothes and other items necessary for basic hygiene enabled a re-infestation of scabies to
occur.
43. A hot shower is one of the few forms of temporary relief from the intense itching caused by scabies. Plaintiff Snead repeatedly requested a hot shower but the Defendant refused to allow her to do so, without any justification.
44. On the fifth day after her rehirn from her emergency dermatology appointment in Franklin, Plaintiff Snead was finally allowed to shower and was provided with clean clothes and bedding. She remained in custody until her release on May 30,2017.
45. Plaintiff Snead, immediately after release, went to the ER, where she finally obtained the medical attention she had been refused by the Defendant. Due to the infectious nature of scabies, the infestation nonetheless spread throughout her home, which Plaintiff was required to vacate in order to eradicate the infestation. Plaintiff has incurred hundreds of dollars in expensive medication costs, expenses for alternative housing at a hotel, and additional expenses in the cost of fumigating and remediating the infestation from the ixirniture, linens, and other items within her home.
46. Plaintiff Snead and Ms. King both have permanent scarring, and are still recovering from the sores left from the parasites. They have been unable to return to work after their release due to the risk of spreading the mite to others, and have therefore incurred lost wages.
47. Despite actual knowledge of the infestation among the prisoner population, and the intensely contagious nature of it, the Defendant failed to take reasonable steps to mitigate the infestation, to quarantine inmates, or to treat those afflicted with a known scabies infestation.
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48. The spread of the infestation was reasonably foreseeable and the Defendant failed to take reasonable steps to mitigate the infestation. As a direct and proximate result of the Defendant's acts and omissions, the Plaintiff and class members became infested.
49. By virtue of the scabies infestation, Plaintiff and the class members were forced to endure painful, itching rashes and sleeplessness while they were housed at the facility. After their release, they were forced to be quarantined, to be absent from work, to miss important family functions and event, during the time they were quarantined and recovering from the infestation. They have incurred the costs of medical treatment, which is ongoing. The scabies mites have spread within their homes, to their children and other family members.
50. Plaintiff have incurred additional expenses for cleaning supplies and professional cleaning services to mitigate and remediate the scabies infestations in their home.
51. Plaintiff have experienced and continue to experience pain, suffering and emotional distress and humiliation from the scabies infestations within their bodies and their homes.
ADMINISTRATIVE PREREQUISITES
52. Upon her arrival at the Defendant's facility. Plaintiff was never provided with a copy of the Defendant's policies and procedures manual or any other document explaining the grievance process or any other administrative procedure. Plaintiff was made to sign a document stating that she received a handbook, even though none was provided.
53. Plaintiff Snead complained that she never received a handbook and that the Defendant's mles were unclear. No handbooks were provided to any other inmate. No copies were available at the prison library.
54. During her confinement, Plaintiff learned how to file a grievance and to request a sick call by speaking with other inmates, who had also learned by way of mouth. By filing the
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grievances, Plaintiff complied with all requirements of the Prison Litigation Reform Act, 42U.S.C. § 1997e(a) ("PLRA") and had exhausted her administrative remedies. Plaintiffs numerous grievances were deliberately ignored by the Defendant, and she therefore had no ability to appeal any decision, none having been made by the Defendant. 55. Plaintiff and other class members were threatened from making any complaints or filing any grievance, which threats included being placed in solitary confinement, deprivation of food, clean clothes, bedding, and the ability to bathe, as well as the loss of phone privileges. To the extent that individuals did not file grievances because of the Defendant's express threats of retaliation, and actual retaliation to Plaintiff and others, the administrative
process was unavailable. 56. Because the Defendant's conduct indefinitely delayed and nullified any administrative
process, the administrative remedies required of the PLRA were unavailable to Plaintiff and other class members. 57. To the extent that administrative remedies remain unexhausted for those still housed at the facility, those Plaintiffs are entitled to injunctive relief while they continue to exhaust administrative grievance procedures. 58. The PLRA is inapplicable to Plaintiff and those class members who are no longer confined in the Defendant's facility.
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CAUSES OF ACTION
COUNT I: DELIBERATE INDIFFERENCE To PLAINTIFFS' SERIOUS MEDICAL NEEDS IN VIOLATION OF PLAINTIFFS' RIGHTS GUARANTEED BY THE
EIGHTH AND FOURTEENTH AMENDMENTS To THE U.S. CONSTITUTION [42 U.S.C. § 1983]
59. The Defendant is a private entity that contracts to perform traditional state function of operating a prison, and the Defendant's employees performed governmental functions. The Defendant's officials therefore acted under color of law.
60. The Defendant's official policies and customs of ignoring and/or substantially delaying requests for medical treatment caused the violation of the Plaintiffs' constitutionally protected rights.
61. Plaintiffs infestation with scabies constituted a sufficiently serious medical need for treatment. Plaintiffs were confined under conditions posing a substantial risk of serious
harm.
62. Due to the extremely contagious nature of scabies infestations, the failure to promptly treat scabies posed an obvious and substantial risk of harm to other inmates.
63. Dozens of grievances and requests for medical attention were filed by Plaintiff and members of the class and submitted to prison officials, all of which were ignored. The officials knew there was a substantial risk of serious harm to Plaintiffs and members of the class, but failed to act.
64. Despite the numerous pleas for medical assistance, the Defendant did not even summon a medical professional to examine Plaintiff or members of the class.
65. Prison officials, including the Warden and Assistant Warden, the prison guards, and nursing staff, all had actual and/or constructive knowledge of a widespread scabies
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infestation spreading throughout the Defendant's facility. These officials had knowledge of the Plaintiffs' asserted serious needs, or were aware of the circumstances clearly indicating the existence of such needs, or subjectively perceived a risk of harm, but then disregarded it by failing to take reasonable measures to abate it. 66. Plaintiff Snead's medical need was diagnosed by a physician as mandating treatment, which was subsequently ignored by the Defendant. The Defendant refused to provide Plaintiff with her prescription medication and retaliated against her for seeking outside medical treatment. 67. The need to treat scabies is obvious even to a layperson. The condition visibly spread to more areas on the body ofinfested inmates. It is apparent that a delay in treating a scabies infestation would detrimentally exacerbate the medical problem. 68. The medical conditions of Plaintiff Snead and members of the class worsened as a result of the Defendant's refusal to provide medical services. 69. Because of the Defendant's continued, deliberate indifference to Plaintiffs' medical needs, the inhumane conditions of confinement constituted cruel and unusual punishment within the meaning of the Eighth Amendment. 70. The pattern and practice of ignoring all inmate complaints was the product of the policies and customs of the Defendant. 71. The prolonged deprivation of medical treatment was serious and addressed the specific, basic human need for medical treatment and access to medical treatment. The deprivation to Plaintiff and members of the class was sufficiently severe to constitute inhumane prison conditions.
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72. The Defendant acted with malice when it retaliated and disciplined Plaintiff and class members for exercising their right to demand medical treatment.
73. As a result of the Defendants' actions, Plaintiffs were deprived of fundamental rights guaranteed by the United States Constitution, including the right to adequate medical care for their serious medical needs while in the custody of the state. The Defendant's actions described herein violated the Eighth Amendment's prohibition against cmel and unusual punishment, and the Fourteenth Amendment's guarantee of substantive due process.
74. As a direct and foreseeable result of the Defendant's violations of Plaintiffs' rights, Plaintiffs have suffered and will continue to suffer physical injury and scarring, the nature of which is permanent. COUNT II; Violation of Plaintiffs' Rights to Due Process for Failure to Protect and Exposure to State Created Danger
75. Plaintiff and members of the class were involuntarily confined or restrained against their will pursuant to a governmental order or by the affirmative exercise of state power by the Defendant.
76. By virtue of the special relationship of the state-imposed custodial setting, the Defendant was under an affirmative obligation to spend its resources to protect Plaintiff and members of the class from harm.
77. The Defendant had exclusive control over the movement and placement of inmates in its custody. The Defendant knowingly and intentionally transferred infested inmates into the crowded cells of healthy inmates, placing them in close proximity to a dangerous contagion. Plaintiff and the class members had no ability to transfer away from infested
inmates.
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78. The Defendant's failure and refusal to treat the scabies infestation allowed it to spread to new hosts and caused the infestation to intensify and spread. The Defendant therefore was the primary cause of the dangers to which Plaintiff was exposed and increased the vulnerability of Plaintiffs to these dangers.
79. The Defendant, having created the danger confronting the Plaintiff, owed a corresponding duty to protect Plaintiff by isolating those infested with scabies and to immediately treat them.
80. The Defendant's failure and refusal to acknowledge or respond to the scabies infestation deprived Plaintiff and members of the class of their rights to due process, guaranteed by the Fourteenth Amendment to the U.S. Constitution. COUNT III: Failure to Train [42 U.S.C. § 1983]
81. The Defendant failed and refused to train its employees upon the proper methods and means to detect, prevent, and treat scabies infections within its facility. The incidents of infestation were prevalent, involving dozens of inmates. Notice from Plaintiffs dermatologist that she had scabies was alone sufficient to alert the Defendant of a genuine danger.
82. The Defendant's refusal to acknowledge the infestation, when confronted with dozens, if not hundreds of medical requests and grievances, is indicative of a profound lack of understanding, and is evidence of a failure to train.
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CLASS ACTION
83. Plaintiffs seek class certification of all claims pursuant to Fed.R-Civ.P. 23. The Defendant has acted or refused to act on grounds that apply generally to the class, so that the claims for damages and for final injunctive relief is appropriate respecting the class as a whole.
84. The class is defined as all female inmates exposed to and infested with scabies, who are, who have been, or who in the future may become, housed at the Defendant's facility in Davidson County.
85. The number of persons whose rights have been similarly violated by the Defendant are too numerous to join in this action. The Plaintiff class members are readily identifiable using records maintained in the regular course of business by Defendant.
8 6. The questions of law described in this Complaint and the facts regarding them are common to all persons who were exposed and subsequently contracted scabies because of the acts of the Defendant.
87. One common question is whether the Defendant has a policy or practice of refusing to provide Plaintiffs with medical care and retaliating against them when they seek outside medical care.
88. Another common question is whether the Defendant fails to train its employees adequately in regard to the medical needs of inmates infested with scabies, in deliberate indifference to the obvious need for such training, and whether it maintains its lack of training in deliberate indifference to the serious medical needs of its inmates infested with scabies.
89. The claims of the Plaintiff are typical of claims of this class, as their claims arise from the same policies, practices, acts, and omissions as those of the Plaintiff class. The named Plaintiffs' claims are based on the same theory as the claims of the respective class.
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90. Plaintiff has been injured as a result of the Defendant's actions addressed in this lawsuit in

the same way as the other members of the proposed class. 91. The Plaintiff will fairly and adequately protect the interests of the class. The named

Plaintiff does not have any interests antagonistic to the interests of the class.

92. By way of this lawsuit, the named Plaintiff, on behalf of the proposed class, seeks in part

to enjoin and restrain the unlawful acts and omissions of the Defendant.

93. The prosecution of separate claims would create a risk of inconsistent adjudications among

members of the proposed class, and might establish inconsistent standards of conduct up

the Defendant.

94. Adjudications with respect to individual members of the class would as a practical matter

be dispositive of the interests of other members not parties to the adjudication, and might substantially impair or impede their ability to protect their interests.

95. The interests of Plaintiff as a class representative are identical to the interest of each class

member.

INJUNCTIVE RELIEF

96. The class members who are currently incarcerated have no plain, adequate or complete

remedy at law to redress the wrongs alleged herein, and injunctive relief sought herein is

their only means of securing adequate relief.

97. The class members are now suffering, and will continue to suffer, irreparable injury from

Defendants' unlawful conduct as set forth herein, unless enjoined by this Court.

98. Plaintiff class members seek a permanent injunction enjoining the Defendant, its agents,

employees, and all those acting in concert with the Defendant under color of state law,

from continuing to violate the Eighth and Fourteenth Amendments of the U.S. Constitution

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and to immediately cease intimidating, threatening, and retaliating against inmates for demanding medical care for their serious medical needs and to immediately provide adequate oral and topical medication sufficient to fully treat all those diagnosed with scabies. 99. Plaintiff class members seek a permanent injunction requiring the Defendant to provide a fall medical staff adequate to meet the needs of those infested with scabies and capable of dispensing medication and monitoring their treatment until completion.
DAMAGES
100. Plaintiff brings tMs suit for all damages recoverable by law including, without limitation, damages for personal injury, for pain and suffering caused in the past and future, for loss of enjoyment of life past and futire, for lost wages, f6r impairment of the Plaintiffs capacity to earn income, and for all medical expenses which are reasonable and necessary and made necessary by the acts and omissions of the Defendant.
101. In addition, because of the reckless and intentional conduct of the Defendant, Plaintiff and each member of the class are entitled to punitive damages.
WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, pray for judgment as follows: 1. That process issue to the Defendant to plead or respond in the time provided by law; 2. That the Court determine, as soon as practicable, and consistent with the requirements of
Fed. R. Civ. P. 23, by order that Plaintiffs proposed class action may be maintained, and provide notice as may be appropriate pursuant to Rule 23; 3. That the Court upon final hearing declare and find that the defendant was deliberately indifferent to the health and safety of the Plaintiff class members;
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4. That Plaintiff class members be awarded a judgment against the Defendant for all damages available under Tennessee and federal law as will fully compensate the Plaintiff class members for all injuries caused by the Defendant's actions and failure to act, as alleged herein;
5. That Plaintiff class members be awarded punitive damages for the Defendant's fraudulent, intentional, reckless, and malicious conduct;
6. That this Court find that the policies, practices, procedures, conditions and customs of the Defendants are violative of the rights of Plaintiff class members as secured by the Eighth and Fourteenth Amendments of the U.S. Constitution.
7. That Plaintiff class members be awarded the costs of bringing this suit, including reasonable attorney's fees and litigation expense pursuant to 42 U.S.C. § 1988 and applicable law;
8. That Plaintiffs and the other Members of the Class be awarded such general relief to which they may be entitled, at law or in equity.
Respectfully submitted, THE BLACKBURN FIRM, PLLC
W. (^T^Iack^um (#3484) BryantKroll(#3'3394) 213 Fifth Avenue North, Suite 300 Nashville, TO 37219 P: (615) 254-7770 F: (866) 895-7272
gblackburn@wgaryblackbum. corn bkroll(%wgaryblackburn. corn
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Jeffery S. Roberts, #20263 JEFF ROBERTS & ASSOCIATES, PLLC 213 Fifth Avenue North, Suite 300 Nashville, W 37219 P: (615) 425-4400 F: (615) 425-4401 Jeff@middletninjury. corn R. Joshua McKee THE MCKEE LAW FIRM 213 Fifth Avenue North, Suite 300 Nashville, TN 37219 P: (615) 425-4400 F: (615) 425-4401 rim(5)jimckeelaw.com Attorneys for Plaintiffs
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE

WENDY SNEAD, and EDWARD )

MOREDOCK, individually and on behalf )

of all others similarly situated,

) Civil Action No. 3:17-cv-00949

) (Consolidated with: 3:17-cv-00958)

Plaintiffs.

)

) CLASS ACTION

v.

)

) Judge Trauger

CORECIVIC OF TENNESSEE, LLC f/k/a ) Magistrate Judge Brown

CORRECTIONS CORPORATION OF )

AMERICA

)

)

Defendant.

)

)

FIRST AMENDED CLASS ACTION COMPLAINT

COMES NOW the Plaintiffs, Wendy Snead, and Edward Moredock, individually and on behalf of all others similarly situated, and for their causes of action against the Defendant would allege as follows:
PRELIMINARY STATEMENT 1. The Plaintiffs and the proposed class include those individuals currently and formerly
housed at the Metro-Davidson County Detention Facility in Davidson County, Tennessee, a prison operated by CoreCivic of Tennessee, LLC, f/k/a Corrections Corporation of America (CoreCivic) pursuant to a contract with the Metropolitan Government of Nashville and Davidson County, Tennessee. During the time of their incarceration, the Plaintiffs and proposed Class Members were entirely dependent on the Defendants to provide them with access to basic health care. However, they have been, and with regard to those still incarcerated, continue to be, deprived of access to basic healthcare.

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2. Plaintiffs bring this Class Action seeking damages and injunctive relief on behalf of themselves and all others similarly situated due to the Defendant’s deliberate indifference to their serious medical needs while they were incarcerated, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and their prohibition against cruel and unusual punishment.
3. Plaintiffs and Class Members were exposed to Sarcoptes scabiei (hereafter "Scabies") caused by the spread of parasitic mites.
4. Defendant operates a private for-profit prison and therefore had direct control of the prisoners in its charge infected with scabies. The Defendant deliberately failed to adequately screen those entering its facility, respond to inmate requests for medical attention, treat those infested with the parasite, quarantine the infected individuals in its care, or to take any other necessary precautions to prevent the spread of scabies outside the facility. This caused a foreseeable and preventable systematic outbreak which spread to the Plaintiffs and all others similarly situated. THE PARTIES
5. Plaintiff Wendy Snead is a citizen of the State of Tennessee and a resident of Cheatham County, Tennessee. She is a former inmate who was housed in the Defendant’s facility in Davidson County.
6. Plaintiff Edward Moredock is a citizen of the State of Tennessee and a resident of Davidson County, Tennessee. He is a former inmate who was housed in the Defendant’s facility in Davidson County.
7. The Defendant, CoreCivic of Tennessee, LLC, is a limited liability company organized under the laws of the State of Tennessee, with its principal place of business located at 10
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Burton Hills Blvd., Nashville, TN 37215. CoreCivic’s registered agent for process in the State of Tennessee is C T Corporation System, 800 S. Gay St., Suite 2021, Knoxville, TN 37929-9710. The Defendant owns and operates the Metro-Davidson County Detention Facility under contract with the Metropolitan Government, housing prisoners sentenced to confinement in the Tennessee Department of Correction. As such, CoreCivic performs a public function traditionally reserved to the state and is therefore subject to suit under 42 U.S.C. § 1983.
JURISDICTION AND VENUE 8. This action is brought pursuant to 42 U.S.C. § 1983 seeking to redress a deprivation of the
Plaintiffs’ rights by the Defendants acting under color of law, which rights are secured by the Eighth Amendment to the United States Constitution. 9. This complaint concerns the violation of civil rights, and this Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 10. All of the claims alleged herein arose in the Middle District of Tennessee, and Venue is therefore proper pursuant to 28 U.S.C. § 1391.
ALLEGATIONS OF FACT 11. The Defendant houses pretrial detainees with other inmates serving sentences in a 1,300-
bed jail facility located at 5115 Harding Place, Nashville TN 37211. There is no distinction in the conditions of their confinement. 12. As the allegations of this Complaint will demonstrate, the Defendant refused to provide the healthcare needed and requested by Plaintiffs and all Class Members. The Defendant repeatedly failed and refused to provide inmates with access to doctors and necessary medicine.
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THE DEFENDANT’S FAILURE TO PROVIDE MEDICATIONS
AND
ACCESS TO MEDICAL CARE 13. The Defendant’s failure to provide medications and medical treatment to inmates is
systemic and intentional, including, without limitation, the following: a. The Defendant is well aware of the need to respond to sick call requests within a
reasonable period of time. It is obligated by contract to ensure responses to sick call requests within 24 hours or less, yet it intentionally and repeatedly fails to do so. On average, initial sick call responses take two-weeks to one-month before inmates are allowed to be seen by a nurse. Referrals to doctors take months. b. The Defendant is well aware of the risk of spreading infectious diseases in its facility. It is obligated by contract to hire staff in charge of infection control, but has failed to hire anybody in this position for at least one, and possibly for up to four (4) years. c. The Defendant is obligated by contract to procure and review the medical records of inmates transferred to the facility who have “special health care needs,” which include those infected with communicable diseases, pregnant inmates, mentally ill and handicapped inmates, and those experiencing detoxification from alcohol or drugs. The Defendant, however, fails and refuses to procure those records, despite actual knowledge of their necessity. d. The Defendant does not utilize any procedure for screening inmates for mites or other parasites during intake. e. Between January and August, 2017, the mental health physician was absent for at least a month and apparently walked off the job, during which time, no mental health patients were prescribed any medication.
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f. The Defendant routinely runs out of mental health medications, and often fails to refill those prescriptions for weeks, posing serious risks to inmates due to the abrupt cessation of required medicine. A male inmate was out of the mental health drug, Gabapentin, but the Defendant falsified the inmate’s medical chart to state that he was receiving it.
g. The pharmacy nurse was absent from work for two to three weeks, starting on or about Memorial Day through at least June 9, 2017, during which time no medications were ordered or reordered. The Defendant has failed and refused to train other staff on the procedures for ordering medications, despite the obvious risk that medications would not be ordered in the event of the pharmacy nurse’s absence. Every day, numerous inmates go without receiving one or more of their medications.
h. Many inmates require medication such as Clonidine to treat high blood pressure. The Defendant is required to keep such medications in stock, but has gone without it, sometimes for up to a week. The Defendant is well aware that missed dosages of blood pressure medication greatly increases the risk of heart attack, stroke, heart failure, and kidney failure.
i. The Defendant does not keep inmate’s medications in alphabetical order. The Defendant’s resulting inability to find medications often results in inmates not receiving them.
j. The Defendant is aware that medical emergencies have been called in and that employees are not responding.
k. The Defendant routinely fails to give the majority of a pod, or entire pod, their medications during pill call. Warden Charlie Peterson was made aware of this situation
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and was told that inmates have repeatedly reported this to nursing staff. Thereafter, the Defendant refused to allow inmates to speak with nurses during pill call, and inmates are no longer given copies of their sick call requests. l. The Defendant fails to announce pill calls in a manner in which inmates can hear it. Nurses are not allowed to travel to the pods to provide inmates their medications. If an inmate misses a pill call, whether because they are in the Rec Room, attending education classes, or using the lavatory, there is no way for them to receive their medication. m. Personnel without medical licensure are refusing to comply with a doctor’s orders or to fill prescriptions as written. The Defendant’s Health Services Administrator (“HSA”) instructs nurses to call the doctor and inform him that they are not going to fill the prescription as written. Doctors have prescribed medication required to be administered four (4) times a day, but the medication is intentionally only administered twice a day, contrary to the doctor’s orders. n. A male inmate was prescribed breathing treatments twice a day, but went days without receiving it. After nursing staff repeatedly brought this to the Defendant’s attention, the HSA said, “This is becoming quite a habit, isn’t it?” o. The HSA, who is not a licensed medical provider, has instructed medical staff to refuse to prescribe medication, including Ivermectin used to treat scabies, and instead to provide cheaper, over-the-counter products such as Benadryl, which would only mask symptoms without actual treatment of the underlying cause. p. Numerous inmates are authorized for prescriptions that are designated as Keep On Person (“KOP”). However, if they are taken to segregation, their medications are taken
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from them, and the Defendant’s medical staff routinely fails to confirm that inmates receive their medications. When KOP medications are exhausted, inmates will go days or weeks without refills. q. A significant amount of medication is routinely “lost” by the Defendant’s staff. When medications for one inmate run out, they will take it from another, resulting in confusion and the denial of prescription refills because the time to refill the inmate’s prescription has not yet arrived. The mishandling of medication includes narcotics. One inmate reported to the Defendant that insulin from a used syringe was re-injected into the vial and used lancets have been recapped and placed in the same container with new lancets, even after the inmate reported that they had a communicable disease. r. A handicapped male inmate requires the use of a colostomy bag, but the Defendant fails to provide him with sufficient replacement bags. He is therefore forced to rinse the bag out in the sink that is used by all of the inmates, or in the shower where they bathe. s. The Defendant has failed to provide inmates with prescribed opioid medication for chronic cancer pain for weeks or months, leaving them to suffer. t. A male inmate suffered an injury to his hand, severing a tendon. He was prescribed pain medications four (4) times a day to control the pain. Instead of administering the medication as prescribed, non-medical staff reduced the administration to three (3) times a day, informing nursing staff that they did not have time to administer the medication, and that if they did, they “would have to do it for everyone.” In response to an employee’s complaint about the procedure, the HSA stated that they should never administer medications more than twice a day, regardless of doctor’s orders.
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u. The Defendant has been advised that additional medication has been provided by certain nurses under the assumption that the medication is resold to other inmates. The Defendant is aware certain nurses are not crushing medications, the purpose of which is to prevent inmates from hiding pills in their cheek to be sold to other inmates. Some inmates have refused to accept crushed medications, which should have been noted.
v. Employees who have reported the lack of medical care to inmates and the lack of training on internal procedures, have been reprimanded, threatened with discipline, or intimidated. There is an overall failure to train nursing staff, including, without limitation, the proper procedures for pill call, sick calls, intake procedures, release of inmates, medical emergencies, and ordering or re-ordering medication, including emergency refills.
w. When nurses fail to show up to work, the Defendant does not divide that nurse’s assignment or delegate duties in order to ensure that inmates receive medical care.
x. Despite scabies infestations being diagnosed by physicians for inmates, former inmates, and employees, the Defendant continues to deny that there is or ever was any infestation. The intentional misrepresentation of these infestations has contributed to its spread throughout the facility. Regardless of whether the skin rash spreading through the facility was scabies, treatment with actual medication is nonetheless required but has been consistently denied. Inmates with open sores are susceptible to Staphylococcus aureus (“Staph” infections), which are life-threatening unless treated with medication.
y. Inmate grievances/complaints regarding the lack of health care were ignored by the Defendant. The Defendant’s policies impose a 72-hour limit on responding to an
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informal complaint, which is ignored. Grievances are not even presented to the staff member against whom the complaint was filed. z. Nurses have been sent to the units with a UV light or “black light,” ostensibly to detect the presence of scabies on an inmate’s skin through luminescence. They not only lack the training do so, the black light is designed for corneal abrasions. They have been advised that this device would not detect the presence of the scabies mite, but are apparently still utilizing it for this improper purpose. Persons are employing this device with no training whatsoever. aa. During the scabies outbreak alleged in this lawsuit, skin scrapings to verify the presence of scabies were not performed. 14. The risk of a scabies infestation in prisons and other facilities which house large numbers of individuals is well known. The Defendant’s systemic failure to provide medical care and treatment to inmates resulted in an outbreak of scabies, which spread throughout the Defendant’s facility.
The Scabies Outbreak 15. The Defendant frequently received and housed members of the homeless population, who
would cycle in and out of the facility on a regular basis. These individuals had no healthcare and were susceptible to scabies infestation. The Defendant did not provide a medical screening prior to placing inmates in the general population at the facility. The Defendant did not employ any person or implement any protocol to screen individuals for infectious diseases or parasites, enabling the introduction and spread of diseases from new arrivals to the inmate population.
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16. In the Summer of 2016 and thereafter, there was a scabies outbreak in the Defendant’s facility. The outbreak spread throughout the inmate population and those likely to come in contact with them, including CoreCivic employees and court staff in Davidson County.
17. Plaintiffs Wendy Snead and Edward Moredock’s exposure to scabies was caused by the spread of parasitic mites among other inmates who were denied treatment. Those infested with the parasite develop a visible rash, which was made known to the Defendant by observation and experience, and by frequent complaints, grievances, and requests for medical treatment by the inmates.
18. Scabies is most easily transmitted by skin-to-skin contact, but is not the only means of transmission. The mites can live for two to five days away from the host on clothing and bedding. Eggs deposited off the host can hatch in seven (7) days. They can infest new hosts through shared clothing, bedding, carpets, and furniture. After hatching, the mites are capable of reproduction in another 10-14 days.
19. The mites burrow under the outer layer of skin, ingesting tissue as they burrow. Female mites lay their eggs at the end of the tunneled burrows, and larvae hatch two to three days after the eggs are laid. After hatching, the mites remain in the burrow for up to one day, and then crawl away to excavate their own burrows. The mites crawl at a rate of up to one-inch per minute on the surface of the skin and can readily move to a new individual when skin-to-skin contact is made. Any person who has direct contact with someone who has scabies, however brief, may be at risk for infestation.
20. The mites cause intense itching, which facilitates re-infestation and skin eruptions that transfer the mites to new hosts. The infestation causes a visible skin rash due to the sensitization and allergic reaction to the proteins and feces of the parasite. Itching and the
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rash may affect much of the body or be limited to common sites such as between the fingers, wrists, elbows, genitals, waist, belt line, thighs, feet, ankles, underarms, buttocks, and/or shoulder blades. 21. The scabies infestation leads to relentless and unbearable itching, especially at night. The rash results in scales, blisters, bleeding, and open sores caused by scratching. The rash is readily distinguishable from other skin maladies due to the appearance of track-like burrows in the skin, which are created when female mites tunnel under the surface of the skin. Due to the severity of the itching at night, those infested with the parasite experience an inability to sleep until they have been treated and the infestation is in remission. The inability to sleep and perpetual discomfort can result in mental illness and/or severe emotional distress. The infestation results in permanent, visible scarring, and can trigger autoimmune diseases, such as eczema or psoriasis, which are permanent in nature. 22. Skin lesions caused by the mite may become infected with secondary microorganisms, such as Staph infections and Streptococcus pyogenes. If left untreated, the infections can cause kidney damage from a condition known as postinfectious glomerulonephritis (PIGN). Prescription medications, including multiple rounds of Ivermectin pills and Permethrin cream applied to the entire body, are required in order to eradicate the infestation. 23. The Defendant knew that scabies outbreaks are common in a crowded jail setting where inmates are housed together, share living quarters, and come into frequent contact with one another. Although the Defendant has an infection control policy, it failed and refused to follow it prior to, during, and after the scabies outbreak at the facility.
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24. In July 2016, an intense skin rash consistent with a scabies infestation spread throughout the male inmate population. Inmates submitted sick call requests for medical treatment, but instead, received over-the-counter products such as hydrocortisone cream, Benadryl, and other topical ointments that masked the symptoms. The rash began spreading throughout the inmate population.
25. Plaintiff Moredock was housed in the Defendant’s facility in August, 2016 to serve a sentence for a DUI conviction. He became a trustee who assisted with the maintenance of the Defendant’s facility. Plaintiff Moredock was placed in the living area for older inmates, which also housed those with physical and mental disabilities. Plaintiff Moredock’s pod had approximately 140 inmates. The beds were cramped and inmates had to touch other inmates’ beds in order to ascend and descend their bunks.
26. Several inmates in Plaintiff Moredock’s bunk area played cards with inmate “C.M.”, who had the rash on his hands. Soon afterward, these inmates developed the rash on their hands and arms, which spread to other areas of their body.
27. Plaintiff Moredock attempted to avoid exposure to inmates who had developed the rash, which was quickly spreading throughout the male inmate population. He ate his meals on his bunk, stayed on his bunk, and tried to avoid the common areas.
28. Despite his efforts, in October of 2016, Plaintiff Moredock developed the rash, which was consistent with a scabies infestation, including red bumps and track-like burrow marks on his skin, accompanied by an intense and painful itching near the sores.
29. Although Plaintiff Moredock was not given an initial screening upon his entry to the Defendant’s facility, he was required to have a health screening in order to work as a trustee at the Defendant’s facility. He had previously complained generally about the screening
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procedure, and the lack of tuberculosis (“TB”) testing for new arrivals. The Defendant stated that Plaintiff would be provided a TB test, but it was never administered. Mr. Moredock was screened for the first time ninety (90) days after his arrival, and he complained about the rash that had spread over his body. The Defendant falsely informed Plaintiff that the rash was caused by “contact dermatitis,” a reaction to the water, or “something in the laundry.” 30. By October of 2016, the rash had spread to the female population. Male inmates continued to submit sick call requests for treatment for the rash, all of which were ignored. Male inmate, “C.M.” filed a grievance over the lack of medical treatment and was then placed in solitary confinement for two days as punishment. 31. By November of 2016, the scabies infestation at the Defendant’s facility was widespread. The Defendant was well aware that the rash was consistent with a scabies infestation and was the most likely cause, but falsely told inmates that they did not have scabies. 32. Because Plaintiff Moredock’s initial request for treatment of the rash was ignored, he filed another sick call request in November of 2016. He described symptoms of an obvious scabies infestation. Mr. Moredock stated that he had developed the rash several weeks prior, that it had spread over his arms and legs, and that the itching would not stop. 33. Because the Defendant refused to address Plaintiff Moredock’s medical needs, he asked a friend to download the “WebMD” Internet page for scabies. Plaintiff provided the printout to the Defendant, who continued to ignore his complaints. 34. Plaintiff Moredock began working as a trustee in December of 2016. His job was to assist with the maintenance and repairs to the Defendant’s facility. In furtherance of his work, Plaintiff traveled among the pods for both male and female inmates. He saw that
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individuals in every pod had developed a rash consistent with a scabies infestation and were openly complaining about it. 35. On December 4, 2016, Plaintiff Moredock filed a sick call request which stated, “2nd attempt to get treatment for the scratching and itching on my arms and legs. I have Scabies! Please Help Me!” The form indicated that he had the rash for seven weeks. At least forty (40) other inmates in his pod also had scabies. Following numerous complaints, the Assistant Warden came and spoke with the inmates. He stated that he would “get with medical” to address the situation, but never did so. 36. Plaintiff Moredock and other inmates feared retaliation for requesting medical assistance. The Defendant frequently intimidated inmates, falsely and impertinently stating that the Davidson County judges had a financial interest in CoreCivic, ownership of stock, and that a Plaintiff would lose any lawsuit filed against the company. 37. Numerous men in Mr. Moredock’s pod suffered from physical and mental handicaps and/or disorders. The handicapped population was particularly vulnerable to abuse and neglect because they were unable to care for themselves. Although the handicapped inmates were covered with obvious scabies infestations, the Defendant was unwilling to offer them any assistance. By nature of their disabilities, these inmates were unable to determine what was wrong, how to voice their concerns, and how to seek medical attention. 38. Because of their disabilities, numerous handicapped individuals would not shower for several weeks, allowing scabies to spread throughout their bodies and the general population. 39. Toward the end of December 2016, Plaintiff Moredock had still not been treated for the scabies infestation after suffering for over three (3) months. Plaintiff finally complained
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that because he was moving in and out of the Warden’s office, he needed treatment to avoid spreading it to him. The Defendant finally prescribed medication to Mr. Moredock in January of 2017, but only because of his proximity to the Warden. 40. On or about January, 2017, an employee of the State of Tennessee came to test the water at the facility. Despite no finding of contamination, the Defendant continued to deny that inmates were infested with scabies, stating that the water was the source of the rash. 41. In order to remediate a scabies infestation, the Defendant must gather an infested inmate’s contaminated clothing in a biohazard bag, to be washed separately. The Defendant failed and refused to do so, however, and washed the contaminated clothes together with those of healthy individuals, both male and female. 42. As part of his job duties, Plaintiff Moredock worked on the boilers and in other areas of the Defendant’s facility. Although the prison boilers are supposed to achieve a temperature of 160 degrees in order to sanitize laundry, the Defendant’s boiler temperature was frequently well below that temperature due to disrepair. Mr. Moredock complained to the Defendant about an inability to properly bring certain equipment into working order. The employee informed him that, because CoreCivic only leased the premises and the building belonged to Metro, they only needed to perform the bare minimum repairs in order to temporarily fix problems. The employee explained that the Defendant did not want to spend money on repairs. 43. In January of 2017, the Defendant finally admitted that some of the male prisoners had scabies. Some were provided oral medication but were not quarantined. The Defendant refused to acknowledge obvious scabies infestations in other inmates and retaliated against them for even mentioning the word “scabies” by placing them in solitary confinement or
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threatening the same. Because the Defendant monitors phone calls, the inmates who spoke about scabies over the phone lost their phone privileges. 44. Male inmate “D.B.” had also been infested with scabies for many months. His requests for medical attention, complaints, and grievances were likewise ignored. On or after January, 2017, D.B.’s wife reported these concerns to the Metro Health Department, but no action was taken. Because of the Defendant’s delay and refusal to treat D.B., he developed permanent scarring all over his body. 45. Male inmate “J.N.” was housed at the Defendant’s facility. He frequently complained about the rash over his body. His sick calls and complaints were ignored. J.N.’s mother informed the Defendant that her son’s rash appeared to be scabies, which the Defendant denied. In response to his requests for medical attention and his complaints, the Defendant threatened J.N. instead of providing treatment. Because he was unable to sleep and constantly suffered from the itching, J.N. suffered a mental breakdown, in response to which, the Defendant placed him in solitary confinement without treatment. J.N.’s mother contacted the Defendant’s medical staff and begged for assistance for her son, which was ignored. Sometime later, J.N. was provided Benadryl but not anti-scabies medication, which only masked his symptoms without treating the underlying infestation. 46. Although Plaintiff Moredock ultimately received a round of medication to treat scabies, the Defendant took no other action to quarantine infested individuals from the general population. The Defendant would only launder the inmates’ wool blankets once every 30 to 90 days, enabling the scabies to re-infest individuals who received treatment.
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47. On or about December 13, 2016, Class Member Jennifer King was sent to the Defendant’s facility as a pretrial detainee. She was housed within the “D Pod” for approximately one month.
48. In January 2017, Plaintiff Wendy Snead was housed in “A Pod” at the Defendant’s facility for a five-month DUI sentence. Plaintiff had been charged in 2013 and had remained sober in the four years since her charge, but was still required to serve the sentence.
49. In January, 2017, Ms. King transferred to “E Pod,” after exhibiting symptoms of scabies infestation, including a visible and painful rash.
50. In February of 2017, a pregnant female inmate was transferred to the Defendant’s facility. She specifically informed the staff that she had been diagnosed with scabies. The Defendant did nothing to obtain or review her medical records, follow up on the status of her scabies infestation, or otherwise quarantine her from the general population.
51. By the end of March, 2017, the majority of female inmates housed in the Defendants’ “Echo Pod” had developed the rash.
52. On March 10, 2017, Plaintiff Moredock filed another sick call request, which states, “I HAVE NOT received my scabies treatment drug? It was ordered on 3-6-17. 6 pills. No one seems to know anything on the pill cart?” In response, the medical staff wrote “Ivermectin reordered; had more but given last dose.” On 3/13/17, a member of the medical staff crossed out the statement and wrote in, “Benadryl & refer to MD.”
53. Plaintiff Moredock was not rid of the parasite after the initial dose of medication in January. He continued to submit additional sick call requests, which were not addressed by the Defendant. By March of 2017, Mr. Moredock continued to complain that he had not received his medication. He ultimately suffered from scabies for six months. Because of
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the Defendant’s failure to provide access to medical care, Mr. Moredock had to seek treatment after his release in May of 2017 at his own expense. He was unable to return to work due to the risk of spreading the infestation to others, and incurred lost wages as a result. 54. In April of 2017, the Defendant provided a few of the male inmates with medication to treat scabies, but denied medication to others. The selective treatment and lack of quarantine facilitated the spread of the scabies infestation. On or about April 15, 2017, a male inmate who had been diagnosed with scabies in January of 2017, was finally provided a referral to an outside dermatologist for treatment, after filing multiple sick call requests and grievances. At least 30 to 40 inmates in his pod had the same rash, which was typical of the other pods for both male and female inmates. 55. On or about May 1, 2017, after the Defendant’s repeated failure to treat or quarantine inmates infested with scabies, approximately fifty (50) female inmates in Echo Pod authored a letter and attempted to mail it to the Metro Health Department. The letter described the spread of the rash and the Defendant’s failure to treat inmates. Because the Defendant monitors the inmates’ mail, the letter was confiscated. 56. A second letter dated May 8, 2017, was addressed to the Health Department and signed by forty-nine (49) female inmates housed in the Defendant’s “Echo Pod.” The letter states: “Nashville/Davidson County Department of Health We are writing to request help. If you do not have the authority to step up, we ask that you please contact a state or federal agency that can and will. Since mid-March the women here at CCA in E-pod have been suffering from some type of fungus, insect, mite or spider bites. We have itchy and painful bites, [welts] in some cases all over our bodies from head to toe. Besides the 4 brown recluse spiders I’ve killed and have kept, and the drain in the bathrooms has files/gnats, but they say they can’t find anything. And it is not a couple of women. It is affecting 80 of the 100 women that are currently being housed here.
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We have been to medical. Some were not diagnosed but only given hydrocortisone and Benadryl. A couple were told it was dust mites and prescribed triamcinolone 0.1% cream. None of this has helped at all.
On May 5th the staff here decided to wash our sheets and blankets because of numerous complaints. They only washed one section of the pod’s bed clothes. Nevertheless, the problem has become more aggressive since.
[Name redacted] received a letter from Mr. Nelson, our maintenance supervisor, threatening to write her up if she writes any more inmate request forms about the bites. [Name redacted] has that letter along with the 4 spiders.
The entire E unit (Echo) is covered in mold and dust. Every 4-6 weeks they paint over it all. There are worm type insects in our shower drains. The entire shower walls and floors are covered in mold. We have asked the Warden, officers, case manager and counselor for help. No one cares or will help us. It’s not 20-40 bites on each person. It is more like 50-70 bites. We cannot sleep. This last week a cricket and a roach were found on our dinner trays in our pod. When we asked for an exterminator to spray, the maintenance man came in our pod with 2 small spray bottles of bug spray like a woman would purchase at Walmart. This is a unit of 100 women that sleep, eat, shower and use the restroom in a very small space. We rarely leave this room.
This effects the community. We have contact with our families, children, babies and our loved ones on Sundays during visits. Women go to court Mon.-Fri and have contact with lawyers, P.O. officers, mental health workers, and other inmates from other counties. Some women return from court and are released that day. There are women released from E-pod every day. This bug issue, fungus, mold spore infection, or whatever is spreading at an alarming rate. Not one woman is getting better, only worse. It is very serious. Many of us look like we have shingles, scabies, or chicken pox.
Also the ceiling in our open bunk area has several leaks. When it rains, women on the top bunks get wet. There is mold and dust on all the walls, more noticeable on the top near the pipes and the ceiling. We do not have any air conditioning or any ventilation in our common area. This is where we eat, shower, use the restroom, watch TV, make phone calls, and socialize.
We are asking you to please help us! We are miserable and have tried every possible solution. So far the situation is only getting worse.” (emphasis added)
57. In a letter dated May 9, 2017, another female inmate states:
19
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“[Name Redacted] was transported to Meharry Hospital for a pregnancy checkup. The Doctor at Meharry told her that she has scabies. She was brought back to CCA and returned to Echo unit. No one has been treated yet.” 58. In a letter dated May 9, 2017, a different female prisoner states: “[Name Redacted] was taken to Meharry Hospital for a pregnancy checkup. The Doctor at Meharry informed her that she has scabies most likely contracted at CCA in Echo unit. Transportation returned [name redacted] to CCA w/ her medical papers. However, the medical staff here still refuses to treat us.” 59. Despite the diagnoses of scabies by doctors at Meharry Hospital, the two pregnant female inmates were not provided medication to treat scabies until sometime in June, after the Metro Health Department intervened. One of the pregnant females was allowed to travel to a re-entry program, where she came in contact with the public. The program instructor spoke with the Warden about the inmate’s infestation on at least two occasions. Everyone in the Class had to be treated for scabies. 60. In May of 2017, Ms. King was transferred from E Pod into A Pod. By this time, King was covered from head to toe with the visible rash and it was obvious that she had been afflicted with it for some time. The Defendant falsely advised Ms. King that she was not contagious. Prior to King’s arrival, no inmates in Plaintiff Snead’s unit showed any symptoms of a scabies infestation. 61. Ms. King requested medical treatment and complained about the Defendant ignoring her complaints and refusing to provide medical services. Ms. King complained to the Warden, the Assistant Warden, the case managers, and the guards. She filed numerous grievances, all of which went unanswered and ignored by the Defendant.
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62. Ms. King begged the Defendant for relief and treatment. It was not until February 2017 that she was given access to a doctor. Pursuant to the Defendant’s official policy, custom, and practice of ignoring requests for medical attention, the Defendant denied that King had any medical issues despite her obvious distress and visible rash, and refused to allow her to obtain outside medical treatment.
63. One of the inmates in A Pod had attended nursing school and recognized the rash. She complained to the Defendant that the rash appeared to be a scabies infestation.
64. Ms. King was placed in an 8-person cell, in close proximity to Plaintiff Snead and others. The women in this cell quickly started developing the rash on their bodies. Other women in A Pod started developing the rash as well.
65. One inmate refused to go into the same room as King because she had seen people with scabies infestation before and knew that King had the infestation. The Defendant did nothing in response to the inmate’s repeated complaints.
66. On or about May 1, 2017, a female guard employed by the Defendant searched the Internet for pictures of scabies. She informed the Plaintiff Class that the rash spreading through the inmate population appeared to be a scabies infestation.
67. Inmates began openly talking about the spread of the rash being a scabies infestation. In response, guards employed by the Defendant began threatening Plaintiff Snead and other inmates that if they mentioned the word “scabies,” complained about it, or filed a grievance, they would be placed in solitary confinement. The guards informed Plaintiff and others that female inmates from E Pod, from which Ms. King had transferred, had been placed in solitary confinement for discussing the scabies infestation. In so stating, the
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Defendant acknowledged that inmates had been complaining about scabies in E Pod for some time prior to Ms. King’s transfer to A Pod. 68. Inmates attempted to inform their family members about the scabies infestation over the phone and asked their families to research scabies on their behalf. Because the Defendant monitors all phone calls, those inmates immediately had their phone privileges revoked, in retaliation for attempting to bring light to the epidemic. 69. On May 7, 2017, Plaintiff Snead noticed red bumps developing on her right arm that resembled insect bites, which were accompanied by intense itching and a biting sensation. 70. On May 8, 2017, the bites continued to spread and the itching intensified. Plaintiff Snead showed a nurse, who dismissed Plaintiff’s report and merely advised that Plaintiff change her soap. Plaintiff informed the nurse that she had been using the same soap for the last four months with no issues. 71. By May 9, 2017, Plaintiff Snead’s body was covered with the bites and rash, and she requested another sick call. By May 11, inmates were noisily complaining that the rash was scabies. Plaintiff’s request for a sick call had still not been fulfilled. 72. Plaintiff Snead thereafter began filing formal grievances due to the refusal of the Defendant to provide her access to medical treatment. From May 9 until her departure from the facility, Plaintiff filed seven (7) grievances in total, none of which were ever addressed by the Defendant. 73. Because of the Defendant’s deliberate indifference to the grievances filed by Plaintiff Snead and others, the women promised to file a new grievance each day until the Defendant addressed the issue, all of which were ignored or discarded by the Defendant.
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74. By May 12, 2017, the itching was unbearable and Plaintiff Snead was unable to sleep. Her request for a sick call was ignored by the Defendant, and any of Plaintiff’s attempts to speak about the sick call were met by the Defendant with anger and dismissal.
75. On May 13, 2017, Plaintiff Snead was still unable to sleep and there was no response to her request for a sick call. Because of the Defendant’s conduct, she feared disciplinary action if she attempted to follow through on her request for a sick call. Plaintiff, desperate for some sort of relief, broke down in tears to the Assistant Warden and begged for medical treatment, but none was ever provided.
76. Plaintiff Snead had gone 72 hours without any sleep due to the intense itching, which was a frequent occurrence until her release. Plaintiff was physically, mentally, and emotionally tormented by the sensation of insects biting her and the inability to obtain any relief from the Defendant. Plaintiff Snead became physically ill from the stress, developing a fever and chills. She attempted to obtain a sick call to handle the fever, which was refused by the Defendant.
77. On May 14, 2017, Plaintiff Snead was unable to hug her daughter during the Mother’s Day visit due to fear of spreading the rash. Plaintiff was devastated. Due to the Defendant’s deliberate indifference to her medical needs and continued refusal to respond to Plaintiff’s request for medical attention, Plaintiff experienced emotional distress and hopelessness.
78. On or about May 15, 2017, the acting Assistant Warden, Ms. Hayes, came to Echo Pod and addressed the female inmates. She stated in words or substance, “So I hear that people have problems. How many people are itching?” Approximately 100 women raised their hands, to which Assistant Warden Hayes responded, “that’s some bull**it!” A female inmate stated, “That’s not bull**it, we’re getting eaten alive in here and y’all need to do
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something about this!” Asst. Warden Hayes yelled, “You sit the f**k down and shut the f**k up!” Guards then handcuffed the inmate in full view of the other females and took her to solitary confinement for two weeks. 79. On May 15, the Defendant placed its facility on lock down for 48 hours, during which time inmates were unable to communicate with their family members. Plaintiff Snead was unable to communicate with her family and still had not received any response to her request for medical attention. 80. On May 17, 2017, Plaintiff Snead was finally able to call her family, who reported the situation to the Metro-Nashville Health Department. 81. On May 18, 2017, a Nurse Practitioner employed by the Defendant saw Plaintiff Snead and refused to acknowledge the obvious presence of scabies. Numerous inmates reported that the rash was scabies and that they had begged for help. Met with the Defendant’s deliberate indifference, Plaintiff’s family requested that the Health Department intervene. 82. On May 19, 2017, Plaintiff Snead was transported to a dermatology center in Franklin, Tennessee after her family member had made numerous calls to the Metro Health Department. She was accompanied by a CoreCivic employee who transported her and was present during the evaluation. Ms. Snead was diagnosed with scabies, which is designated by ICD-10-CM code “B86” on her medical record. She was prescribed the following treatment regimen:
“Start Elimite cream, 5%, 1app, applied topically TO AREAS OF RASH LEAVE ON 12 HRS THEN SHOWER, once at NIGHT AND REPEAT IN 7 DAYS, 1 dose(s), 45, Refills 3 Start ivermectin tablet, 3 mg, 4 orally, once 7 day(s), 8, Refills 3 Start tramcinilone topical cream, 0.1%, 1 app, applied topically, 2 times a day, 14 days, 60, Refills 0
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83. The Defendant was specifically informed that all female inmates in Ms. Snead’s pod

required treatment for scabies. The Physician’s Assistant noted in the record:

“She is currently incarcerated and living in a room of several girls. They all have the same rash. I told the patient and the correctional officer that they all need treating. Pt gets out of jail in about 10 days. She was instructed to return here if she did not improve by 4 weeks.”

84. Upon Ms. Snead’s return from the dermatology clinic, the Defendant informed her that

they would not fill her prescriptions. Ms. Snead was sent to solitary confinement and

denied a meal tray, a mattress, and access to her personal belongings. She was provided a

single round of pills the next day. She was not allowed to shower for five days, and was

deprived of clean clothes and sheets, in retaliation for requesting medical treatment.

85. Plaintiff Snead was not allowed to call her family. The Defendant’s retaliation towards

Plaintiff was intended to intimidate Plaintiff and other inmates from filing grievances,

seeking outside medical treatment, or otherwise reporting the scabies outbreak to

individuals outside of the Defendant’s facility.

86. Also on May 19, 2017, Ms. King made a court appearance before Judge Steve Dozier in

the Davidson County Criminal Court. A copy of the transcript is attached as Exhibit A.

Ms. King informed the Court that she was enrolled in the Sheriff’s Anti Violence Effort

(“SAVE”) program but that she could not continue because she had a rash covering her

body. She stated that she had the rash for four months. Judge Dozier asked Ms. King what

programs she was unable to attend because of the rash:

“The Court:

What’s the – what has this kept you going through?

Ms. King:

Everything, because they are –

The Court:

You can’t go to the SAVE program?

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Ms. King:

Right. They are like –I started a couple of weeks and then I had to go to Med-Op and they tried to get it to heal up. So I just really need to go to the hospital, I do.”

87. Ms. King was released on probation on or about May 21, 2017. She immediately went to

the Baptist Hospital ER and was diagnosed with scabies. The ER doctor at Baptist

prescribed her the medications needed to eradicate the scabies infestation, which she had

been suffering from for over four and a half months while in the Defendant’s custody.

88. A hot shower is one of the few forms of temporary relief from the intense itching caused

by scabies. Plaintiff Snead repeatedly requested a hot shower but the Defendant refused to

allow her to do so, without any justification.

89. Immediately after her release, Plaintiff Snead went to the ER and finally obtained the

medical attention that the Defendant had failed and refused to provide. Plaintiff has

incurred hundreds of dollars in expensive medication costs, expenses for alternative

housing at a hotel to avoid infesting her house, and additional expenses in the cost of

fumigating and remediating the infestation from the furniture, linens, and other items

within her home.

90. Between May 15 and June 15, 2017, the Defendant began returning the grievance forms

and sick call request forms that the inmates had submitted and instructed them to change

their content. The Defendant made inmates sign documents falsely stating that their rash

was not scabies or falsely stating that they had been “treated,” when in fact they had not.

91. The Defendant’s pharmacy nurse was absent from work for two to three weeks between

May 29 and June 9, 2017, during which times medications were not ordered or re-ordered.

92. In mid-June, 2017, male inmate “J.C.,” who had been filing sick call requests to treat his

rash for several weeks, was handed five pills by prison guards who were not medical staff.

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He was not told what the medication was or informed of any side effects. The men were never provided a follow-up dosage of medication, which is necessary. 93. Throughout June 2017, the Defendant continued to ignore sick call requests from inmates requesting treatment for the rash, and continued to threaten them if they mentioned the word “scabies.” 94. The scabies infestation had also spread to the Defendant’s own employees. As of June 22, 2017, approximately seventeen (17) CoreCivic employees were diagnosed and treated for scabies. Members of their families, including infants, have also been infested and required treatment. Those that notified the Defendant, sought treatment, or filed Worker’s Compensation claims have been retaliated against, including having baseless written reprimands placed in their personnel files. 95. On or about June 13, 2017, male inmate “D.W.” was finally seen by a doctor, having filed numerous sick calls and grievances over the previous three (3) months. Although the doctor took pictures of his rash and conducted a skin scraping to confirm the presence of scabies, D.W. was informed at that time that his rash was not scabies despite obvious symptoms. He was not quarantined. Two days after the skin scraping, inmate D.W. was quarantined, informed that tests had confirmed the presence of scabies, and was prescribed six (6) Ivermectin pills to treat the infestation. 96. On June 26, 2017, the Metro Health Department interviewed male inmate “C.M.” C.M. informed them that he had the rash since September, 2016. C.M. was provided pills and cream for the scabies. 97. On July 5, 2017, the Defendant’s Health Administrator falsely informed prisoners that no one had been diagnosed with scabies.
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98. On or about July 17, 2017, the Health Department came to the Defendant’s facility. Twelve (12) male inmates who had filed grievances about the lack of medical treatment were placed in solitary confinement before the Health Department’s arrival and were unable to speak with them to inform them of what was occurring in the facility.
99. Plaintiffs have permanent scarring and are still recovering from the sores left from the parasites. They have been unable to return to work after their release due to the risk of spreading the mite to others, and have therefore incurred lost wages.
100. Despite actual knowledge of the infestation among the prisoner population, and the intensely contagious nature of it, the Defendant failed to take reasonable steps to mitigate the infestation, to quarantine inmates, or to treat those afflicted with a known scabies infestation.
101. The spread of the infestation was reasonably foreseeable and the Defendant failed to take reasonable steps to mitigate the infestation. As a direct and proximate result of the Defendant’s acts and omissions, the Plaintiffs and Class Members became infested.
102. By virtue of the scabies infestation, Plaintiffs and the Class Members were forced to endure painful, itching rashes and sleeplessness while they were housed at the facility. After their release, they were forced to be quarantined, to be absent from work, to miss important family functions and event, during the time they were quarantined and recovering from the infestation. They have incurred the costs of medical treatment, which is ongoing. The scabies mites have spread within their homes, to their children, and other family members.
103. Plaintiffs have incurred additional expenses for cleaning supplies and professional cleaning services to mitigate and remediate the scabies infestations in their homes.
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104. Plaintiffs have experienced and continue to experience pain, suffering, emotional distress and humiliation from the scabies infestations within their bodies and their homes. ADMINISTRATIVE PREREQUISITES
105. Upon their arrival at the Defendant’s facility, Plaintiffs were never provided a copy of the Defendant’s policies and procedures manual or any other document explaining the grievance process or any other administrative procedure. Plaintiffs were forced to sign a document stating that they received a handbook, even though none was provided.
106. Plaintiff Snead specifically complained that she never received a handbook and that the Defendant’s rules were unclear. No handbooks were provided to any other inmate. No copies were available at the prison library.
107. During their confinement, Plaintiffs learned how to file a grievance and to request a sick call by speaking with other inmates, who had also learned by way of mouth. By filing the grievances, Plaintiffs complied with all requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”) and had exhausted their administrative remedies. Plaintiffs’ numerous grievances were deliberately ignored by the Defendant, and they therefore had no ability to appeal any decision, none having been made by the Defendant.
108. Plaintiffs and other Class Members were threatened from making any complaints or filing any grievance, which threats included being placed in solitary confinement, deprivation of food, clean clothes, bedding, and the ability to bathe, as well as the loss of phone privileges. To the extent that individuals did not file grievances because of the Defendant’s express threats of retaliation, and actual retaliation to Plaintiffs and others, the administrative process was unavailable.
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109. Because the Defendant’s conduct indefinitely delayed and nullified any administrative process, the administrative remedies required of the PLRA were unavailable to Plaintiffs and other Class Members.
110. To the extent that administrative remedies remain unexhausted for those still housed at the facility, those Plaintiffs are entitled to injunctive relief while they continue to exhaust administrative grievance procedures.
111. The PLRA is inapplicable to Plaintiffs and those Class Members who are no longer confined in the Defendant’s facility. CAUSES OF ACTION
COUNT I: DELIBERATE INDIFFERENCE TO PLAINTIFFS’ SERIOUS MEDICAL NEEDS IN VIOLATION OF PLAINTIFFS’ RIGHTS GUARANTEED BY THE
EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION [42 U.S.C. § 1983]
112. The Defendant is a private entity that contracts to perform traditional state function of operating a prison, and the Defendant’s employees performed governmental functions. The Defendant’s officials, therefore, acted under color of law.
113. The Defendant’s official policies and customs of ignoring and/or substantially delaying requests for medical treatment caused the violation of the Plaintiffs’ constitutionally protected rights.
114. Plaintiffs’ infestation with scabies constituted a sufficiently serious medical need for treatment. Plaintiffs were confined under conditions posing a substantial risk of serious harm.
115. Due to the extremely contagious nature of scabies infestations, the failure to promptly treat scabies posed an obvious and substantial risk of harm to other inmates.
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116. Dozens of grievances and requests for medical attention were filed by Plaintiffs and members of the Class and submitted to prison officials, all of which were ignored. The officials knew there was a substantial risk of serious harm to Plaintiffs and members of the Class, but failed to act.
117. Despite the numerous pleas for medical assistance, the Defendant did not even summon a medical professional to examine Plaintiffs or members of the Class.
118. Prison officials, including the Warden and Assistant Warden, the prison guards, and nursing staff, all had actual and/or constructive knowledge of a widespread scabies infestation spreading throughout the Defendant’s facility. These officials had knowledge of the Plaintiffs’ asserted serious needs, or were aware of the circumstances clearly indicating the existence of such needs, or subjectively perceived a risk of harm, but then disregarded it by failing to take reasonable measures to abate it.
119. Plaintiff Snead’s medical need was diagnosed by a physician as mandating treatment, which was subsequently ignored by the Defendant. The Defendant refused to provide Plaintiff with her prescription medication and retaliated against her for seeking outside medical treatment.
120. The need to treat scabies is obvious, even to a layperson. The condition visibly spread to more areas on the body of infested inmates. It is apparent that a delay in treating a scabies infestation would detrimentally exacerbate the medical problem.
121. The medical conditions of Plaintiffs and members of the Class worsened as a result of the Defendant’s refusal to provide medical services.
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122. Because of the Defendant’s continued, deliberate indifference to Plaintiffs’ medical needs, the inhumane conditions of confinement constituted cruel and unusual punishment within the meaning of the Eighth Amendment.
123. The pattern and practice of ignoring all inmate complaints was the product of the policies and customs of the Defendant.
124. The prolonged deprivation of medical treatment was serious and addressed the specific, basic human need for medical treatment and access to medical treatment. The deprivation to Plaintiffs’ and members of the Class was sufficiently severe to constitute inhumane prison conditions.
125. The Defendant acted with malice when it retaliated and disciplined Plaintiffs and Class Members for exercising their right to demand medical treatment.
126. As a result of the Defendant’s actions, Plaintiffs were deprived of their fundamental rights guaranteed by the United States Constitution, including the right to adequate medical care for their serious medical needs while in the custody of the state. The Defendant’s actions described herein violated the Eighth Amendment’s prohibition against cruel and unusual punishment, and the Fourteenth Amendment’s guarantee of substantive due process.
127. As a direct and foreseeable result of the Defendant’s violations of Plaintiffs’ rights, Plaintiffs have suffered and will continue to suffer physical injury and scarring, the nature of which is permanent.
COUNT II: VIOLATION OF PLAINTIFF’S RIGHTS TO DUE PROCESS FOR FAILURE TO PROTECT AND EXPOSURE TO STATE CREATED DANGER
128. Plaintiffs and members of the Class were involuntarily confined or restrained against their will, pursuant to a governmental order or by the affirmative exercise of state power by the Defendant.
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129. By virtue of the special relationship of the state-imposed custodial setting, the Defendant was under an affirmative obligation to spend its resources to protect Plaintiffs and members of the Class from harm.
130. The Defendant had exclusive control over the movement and placement of inmates in its custody. The Defendant knowingly and intentionally transferred infested inmates into the crowded cells of healthy inmates, placing them in close proximity to a dangerous contagion. Plaintiffs and the Class Members had no ability to transfer away from infested inmates.
131. The Defendant’s failure and refusal to treat the scabies infestation allowed it to spread to new hosts and caused the infestation to intensify and spread. The Defendant, therefore, was the primary cause of the dangers to which Plaintiffs were exposed and increased the vulnerability of Plaintiffs to these dangers.
132. The Defendant, having created the danger confronting the Plaintiffs, owed a corresponding duty to protect Plaintiffs by isolating those infested with scabies and to immediately treat them.
133. The Defendant’s failure and refusal to acknowledge or respond to the scabies infestation deprived Plaintiffs and members of the Class of their rights to due process, guaranteed by the Fourteenth Amendment to the U.S. Constitution. COUNT III: FAILURE TO TRAIN [42 U.S.C. § 1983]
134. The Defendant failed and refused to train its medical staff on at least the following: a. The procedures for pill call, sick calls, intakes, releases, accuchecks, medical emergencies, seizures, chest pain, and handling inmates going through withdrawal;
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b. The procedures for ordering and reordering medication, including how to order medications on an emergency basis;
c. The procedures for covering the shifts of employees and delegating their tasks when they fail to show up for their shifts;
d. The procedures for calling doctors in emergency situations; e. The procedures for dispensing medications in the event an inmate misses a pill call due
to a lock-down, during count times, or for any other reason in which an inmate has missed a required dosage; f. The procedures for administering medications via central IV lines; 135. The Defendant failed and refused to train its employees upon the proper methods and means to detect, prevent, and treat scabies infections within its facility. The incidents of infestation were prevalent, involving hundreds of inmates. Notice from Plaintiff Snead’s dermatologist that she had scabies was alone sufficient to alert the Defendant of a genuine danger. 136. The Defendant’s refusal to acknowledge the infestation, when confronted with at least dozens, if not hundreds of medical requests and grievances, is indicative of a profound lack of understanding, and is evidence of a failure to train. 137. The Defendant’s training was wholly inadequate to the tasks that the employees performed and the inadequacy was the result of the Defendant’s deliberate indifference. The Defendant’s inadequacy was closely related to and/or actually caused the injury at issue. 138. The Defendant was deliberately indifferent to the need to train its employees to address the obvious need of inmate access to medical care and medication.
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139. The Defendant’s failure to train lead to the deliberate indifference to, and denial of, inmates’ access to medical care. CLASS ACTION
140. Plaintiffs seek Class certification of all claims pursuant to Fed.R.Civ.P. 23. The Defendant has acted or refused to act on grounds that apply generally to the Class, so that the claims for damages and for final injunctive relief is appropriate, respecting the class as a whole.
141. The Plaintiff Class is defined as all inmates who have been denied medical treatment including those infested with scabies and not treated for the condition, those who have been denied medication as prescribed, those who have been denied sick calls and thus denied medical treatment as a consequence of their imprisonment having been housed at the Defendant’s facility in Davidson County.
142. The number of persons whose rights have been similarly violated by the Defendant are too numerous to join in this action. The Plaintiff Class Members are readily identifiable using records maintained in the regular course of business by Defendant.
143. The questions of law described in this Complaint and the facts regarding them are common to all persons who were exposed and subsequently contracted scabies because of the acts of the Defendant.
144. One common question is whether the Defendant has a policy or practice of refusing to provide Plaintiffs with medical care and retaliating against them when they seek outside medical care.
145. Another common question is whether the Defendant fails to train its employees adequately in regard to the medical needs of inmates infested with scabies, in deliberate indifference
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to the obvious need for such training, and whether it maintains its lack of training in deliberate indifference to the serious medical needs of its inmates infested with scabies. 146. The claims of the Plaintiffs are typical of claims of this Class, as their claims arise from the same policies, practices, acts, and omissions as those of the Plaintiffs’ Class. The named Plaintiffs’ claims are based on the same theory as the claims of the respective Class. 147. Plaintiffs have been injured as a result of the Defendant’s actions addressed in this lawsuit in the same way as the other members of the proposed class. 148. The Plaintiffs will fairly and adequately protect the interests of the Class. The named Plaintiffs do not have any interests antagonistic to the interests of the Class. 149. By way of this lawsuit, the named Plaintiffs, on behalf of the proposed Class, seek in part to enjoin and restrain the unlawful acts and omissions of the Defendant. 150. The prosecution of separate claims would create a risk of inconsistent adjudications among members of the proposed Class, and might establish inconsistent standards of conduct by the Defendant. 151. Adjudications with respect to individual members of the class would as a practical matter be dispositive of the interests of other members not parties to the adjudication, and might substantially impair or impede their ability to protect their interests. 152. The interests of Plaintiff as a Class representative are identical to the interest of each Class Member.
INJUNCTIVE RELIEF 153. The Class Members who are currently incarcerated have no plain, adequate or complete
remedy at law to redress the wrongs alleged herein, and injunctive relief sought herein is their only means of securing adequate relief.
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154. The Class Members are now suffering, and will continue to suffer, irreparable injury from Defendants’ unlawful conduct as set forth herein, unless enjoined by this Court.
155. Plaintiffs’ Class Members seek a permanent injunction enjoining the Defendant, its agents, employees, and all those acting in concert with the Defendant under color of state law, from continuing to violate the Eighth and Fourteenth Amendments of the U.S. Constitution and to immediately cease intimidating, threatening, and retaliating against inmates for demanding medical care for their serious medical needs and to immediately provide adequate oral and topical medication sufficient to fully treat all those diagnosed with scabies.
156. Plaintiffs’ Class Members seek a permanent injunction requiring the Defendant to provide a full medical staff adequate to meet the needs of those infested with scabies and capable of dispensing medication and monitoring their treatment until completion. DAMAGES
157. Plaintiffs bring this suit for all damages recoverable by law including, without limitation, damages for personal injury, for pain and suffering caused in the past and future, for loss of enjoyment of life past and future, for lost wages, for impairment of the Plaintiffs’ capacity to earn income, and for all medical expenses which are reasonable and necessary and made necessary by the acts and omissions of the Defendant.
158. In addition, because of the reckless and intentional conduct of the Defendant, Plaintiffs and each member of the Class are entitled to punitive damages.
WHEREFORE, Plaintiffs, individually and on behalf of all others similarly situated, pray for judgment as follows: 1. That process issue to the Defendant to plead or respond in the time provided by law;
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2. That the Court determine, as soon as practicable and consistent with the requirements of Fed. R. Civ. P. 23, by order that Plaintiffs’ proposed class action may be maintained, and provide notice as may be appropriate pursuant to Rule 23;
3. That the Court upon final hearing declare and find that the Defendant was deliberately indifferent to the health and safety of the Plaintiffs’ Class Members;
4. That Plaintiffs’ Class Members be awarded a judgment against the Defendant for all damages available under Tennessee and federal law as will fully compensate the Plaintiffs’ Class Members for all injuries caused by the Defendant’s actions and failure to act, as alleged herein;
5. That Plaintiffs’ Class Members be awarded punitive damages for the Defendant’s fraudulent, intentional, reckless, and malicious conduct;
6. That this Court find that the policies, practices, procedures, conditions and customs of the Defendants are violative of the rights of Plaintiffs’ Class Members as secured by the Eighth and Fourteenth Amendments of the U.S. Constitution.
7. That Plaintiffs’ Class Members be awarded the costs of bringing this suit, including reasonable attorney’s fees and litigation expense pursuant to 42 U.S.C. § 1988 and applicable law;
8. That Plaintiffs and the other members of the Class be awarded such general relief to which they may be entitled, at law or in equity.
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Respectfully submitted, THE BLACKBURN FIRM, PLLC
___/s/ Gary Blackburn _________________ W. Gary Blackburn (#3484) Bryant Kroll (#33394) 213 Fifth Avenue North, Suite 300 Nashville, TN 37219 P: (615) 254-7770 F: (866) 895-7272 gblackburn@wgaryblackburn.com bkroll@wgaryblackburn.com Jeffery S. Roberts, #20263 JEFF ROBERTS & ASSOCIATES, PLLC 213 Fifth Avenue North, Suite 300 Nashville, TN 37219 P: (615) 425-4400 F: (615) 425-4401 Jeff@middletninjury.com R. Joshua McKee THE MCKEE LAW FIRM 213 Fifth Avenue North, Suite 300 Nashville, TN 37219 P: (615) 425-4400 F: (615) 425-4401 rjm@rjmckeelaw.com Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served upon the following via this Court’s electronic CM/ECF filing system: Joseph F. Welborn, III (#15076) Erin Palmer Polly (#22221) Butler Snow LLP The Pinnacle at Symphony Place 150 Third Avenue, South Nashville, Tennessee 37201 (615) 651-6700 (615) 651-6701
__/s/ Bryant Kroll _______
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

WENDY SNEAD and EDWARD

)

MOREDOCK, individually and on

)

behalf of all others similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

CORECIVIC OF TENNESSEE, LLC )

f/k/a CORRECTIONS

)

CORPORATION OF AMERICA,

)

)

Defendant.

)

Case No. 3:17-cv-0949 (Consolidated with 3:17-cv-0958)
Judge Aleta A. Trauger

MEMORANDUM Before the court is the plaintiffs’ Motion for Class Certification. (Doc. No. 19.) The motion has been fully briefed and is ripe for review. For the reasons set forth herein, the motion will be granted in part and denied in part. I. Factual and Procedural Background The original Class Action Complaint (Doc. No. 1) initiating this lawsuit was filed by plaintiff Wendy Snead on June 16, 2017. Named plaintiffs Wendy Snead and Edward Moredock filed the First Amended Class Action Complaint (“Amended Complaint”) (Doc. No. 15) on October 27, 2017. The Amended Complaint asserts claims against defendant CoreCivic of Tennessee, LLC, formerly known as Corrections Corporation of America (“CoreCivic”), under 42 U.S.C. § 1983, based on the defendant’s alleged deliberate indifference to the serious medical needs of current and former inmates while they were incarcerated at the Metro-Davidson County Detention Facility (“MDCDF”) in Davidson County, Tennessee, a facility operated by

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2
CoreCivic, in violation of the inmates’ rights under the Eighth and Fourteenth Amendments to the United States Constitution.
The plaintiffs seek to certify three subclasses, defined in their Motion for Class Certification as follows:
The Scabies Class: All current and former inmates who had a skin rash consistent with a scabies infestation who were denied treatment, or whose delayed treatment by the Defendant caused the inmate’s condition to worsen, since October 1, 2016. The Denied Prescriptions Class: All current and former inmates who were prescribed medication that was not administered as prescribed, or whose prescribed plan of treatment was interrupted or delayed by the Defendant, since October 1, 2016. The Denied Medical Attention Class: All current and former inmates who requested, but were denied medical attention or treatment since October 1, 2016. (Doc. No. 19, at 1.) According to the allegations in the Amended Complaint, CoreCivic is a for-profit prison company that operates MDCDF, a 1,300-bed facility that houses male and female pretrial detainees and convicted prisoners serving sentences. There is no distinction between the detainees’ and prisoners’ conditions of confinement. Both Snead and Moredock are former prisoners of MDCDF, having already served their sentences prior to filing this lawsuit. The Amended Complaint asserts that CoreCivic has repeatedly and intentionally failed and refused to provide healthcare to inmates, including by denying them access to doctors and necessary medication. The pleading contains numerous allegations regarding CoreCivic’s specific failures, including that, despite a contractual obligation to respond to sick call requests within twenty-four hours, CoreCivic’s medical staff typically takes two to four weeks to respond to a sick-call request by allowing an inmate to see a nurse. “Referrals to doctors take months.” (Doc. No. 15 ¶ 13(a).) Despite a contractual obligation to employ staff to oversee infection
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control, CoreCivic has not employed anyone in those positions for at least one and possibly four years, and it does not use any procedure for screening inmates for scabies or other parasitic infections during intake. And, despite a contractual obligation to do so, it does not procure or review the medical records of inmates transferred to the facility who have special health care needs. It routinely runs out of mental health medications and fails to refill prescriptions for weeks, which poses a serious risk to inmates due to the abrupt cessation of necessary medication. It falsifies medical charts to cover the failure to provide prescribed medication to inmates as prescribed and systemically and intentionally fails to provide necessary medical treatment and medication to inmates. It is chronically understaffed and retaliates against inmates for complaining about their lack of access to adequate care.
The condition called scabies is caused by an infestation by a parasitic mite, Sarcoptes scabiei. The mites easily hop from one person to another by skin-to-skin contact but can also live from two to five days away from a host on clothing, bedding, carpets, and furniture. The mites burrow under the outer layer of a person’s skin, ingesting tissue as they burrow. (Am. Compl. ¶ 19.) Female mites lay eggs at the end of the burrowed tunnels, and the larvae hatch in two to three days. The newly hatched larvae soon crawl away to excavate their own tunnels, crawling at a rate of up to an inch per minute. Any person who has direct skin contact with someone who has scabies, however brief, is at risk of an infestation. (Id.)
The scabies mites cause a skin rash that is readily identifiable as a result of the “track-like burrows in the skin” (id. ¶ 21) and is accompanied by intense, nearly unbearable itching, especially at night. The itching may make sleep impossible, giving rise to a whole host of other problems, particularly for persons with preexisting mental health conditions. The associated scratching facilitates re-infestation and skin eruptions that then make it easier for the mites to
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transfer to a new host. It also typically results in scales, blisters, bleeding, open sores, and a resulting risk of secondary infections, such as life-threatening Staph infections. A scabies infestation can only effectively be treated with prescription medications, including often multiple rounds of ivermectin pills and permethrin cream applied to the entire body. (Id. ¶ 22.)
The plaintiffs allege that CoreCivic knew that scabies outbreaks are common in crowded jail facilities and that implementation of an infection-control policy was necessary in such a setting, but it failed and refused to implement and follow an effective infection-control policy prior to, during, or after the scabies outbreak at the facility.
A scabies infestation began spreading among the male inmate population of MDCDF in July 2016. Moredock was sent to MDCDF beginning in August 2016 to serve a sentence for a DUI conviction. He was placed in a living area for older inmates and those with physical and mental disabilities. His pod housed approximately 140 inmates in cramped quarters. Despite attempts to avoid contact with other inmates with an obvious rash, Moredock contracted scabies in October 2016, accompanied by intense and painful itching.
Although Moredock did not receive a health screening or tuberculosis test upon entry, when he was appointed to a prison job as a “trustee” a few months after his arrival, he was required to have a health screening. He was screened for the first time ninety days after his arrival, at which time he complained about the rash that had spread over his body. He was falsely informed that he had “contact dermatitis” or a reaction to “something in the laundry.” (Doc. No. 15, ¶ 29.)
The infestation spread to the female inmate population by October 2016. Meanwhile, male inmates continued to submit sick call requests for treatment, which were ignored. Some inmates were placed in solitary confinement solely in retaliation for filing grievances related to
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the lack of medical treatment for the condition. By November 2016, the scabies infestation at MDCDF was widespread. The defendant
was allegedly aware that the rash symptoms exhibited by a large number of inmates were consistent with scabies but continued to falsely inform the inmates that they did not have scabies.
Moredock’s initial request for treatment was ignored, so he submitted a second sick-call request in November 2016, describing symptoms that were obviously consistent with scabies. Because the defendant refused to adequately address his medical needs, Moredock submitted a printed copy of the “WebMD” internet page discussing scabies to the defendant, which continued to ignore his complaints.
Moredock began working as a trustee in December 2016, which meant that he was responsible for assisting with the maintenance and repairs at MDCDF. In the course of his work, he traveled among housing units (“pods”) for both male and female inmates and personally saw that inmates in every pod were suffering with a rash consistent with scabies and were openly complaining about it.
Moredock filed another sick-call request on December 4, 2016, stating affirmatively that he had scabies. At that point, at least forty other inmates in his pod also had scabies. Many of these were disabled inmates who were particularly vulnerable to infestation and also not capable of voicing their own needs or seeking medical attention. CoreCivic refused to provide treatment for these inmates’ scabies infestations.
Following numerous complaints, the assistant warden came and spoke with the inmates, affirming that he would “get with medical” to address the situation, but he never did. (Am. Compl. ¶ 35.) Moredock and other inmates feared retaliation for requesting medical assistance related to their condition.
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By the end of December 2016, Moredock had been suffering from scabies for over three months and had not received treatment. Finally, he pointed out that he was doing maintenance work in the warden’s office and risked spreading scabies to the warden. At that point, in January 2017, Moredock received treatment.
In January 2017, an employee of the state of Tennessee tested the water at the facility. Despite no finding of contamination, the defendant continued to falsely claim that the inmates’ rashes were caused by the water rather than by scabies. However, around the same time, the defendant finally admitted that some of the male prisoners had scabies. Some were provided oral medication but none were quarantined. The defendant refused to acknowledge obvious scabies symptoms in other inmates and retaliated against some for requesting treatment for scabies by placing them in solitary confinement. Inmates who spoke on the phone to outsiders complaining about scabies lost their phone privileges.
The Amended Complaint mentions several specific inmates, by their initials, who suffered scabies and did not receive proper treatment. Even those inmates who did receive treatment were subject to re-infestation, because the defendant made no effort to quarantine affected inmates or to properly treat their clothing and bedding to insure that the mites were not spread to others.
Putative class member Jennifer King was sent to MDCDF as a pretrial detainee in December 2016. After one month in “D Pod,” she began exhibiting symptoms of scabies and was transferred to E Pod. By the end of March 2017, the majority of inmates housed in E Pod had developed a rash consistent with a scabies infestation.
In February 2017, a pregnant female inmate was transferred to MDCDF. She specifically informed the staff that she had been diagnosed with scabies, but the defendant made no effort to
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obtain her medical records, follow up with her treatment, or quarantine her from the general population to insure that her scabies had cleared up prior to her transfer.
On March 10, 2017, Moredock submitted another sick-call request, inquiring why he had not received the treatment prescribed for his scabies re-infestation, which had been ordered several days previously. A member of the medical staff wrote on his chart, “Ivermectin reordered. Had more but given last dose.” (Doc. No. 15 ¶ 52.) A few days later, someone crossed out that notation and wrote in, “Benadryl & refer to MD.” (Id.)
In May 2017, Moredock was released from incarceration still suffering from scabies. He was required to seek treatment outside at his own expense. He was unable to return to work until it cleared up, in order to avoid infecting others, thus suffering lost wages.
In April 2017, the defendant provided a few inmates with medication to treat scabies but denied medication to others. The selective treatment, lack of quarantine, and other ineffective measures facilitated the continued spread of scabies throughout the facility.
On May 1, 2017, after the defendant’s repeated failure to treat or quarantine those affected by the scabies infestation, approximately fifty female members of E Pod drafted a letter to the Metro Health Department, describing the spread of the rash and the defendant’s failure to treat inmates suffering from it. The letter was confiscated by facility officials and the inmates were not allowed to send it.
On May 8, 2017, forty-nine female inmates housed in “Echo Pod” drafted another letter to the Metro Health Department, requesting assistance with the infestation from which they were suffering and detailing the history of the problem and their unsuccessful attempts to have it addressed. Other inmates sent letters on their own, specifically referencing two pregnant inmates who were taken to Meharry Hospital for checkups, where they were diagnosed with scabies. The
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Amended Complaint does not specify whether this letter was confiscated, but a declaration attached to the pleading indicates that it was transmitted to the friend of an inmate, who then mailed it to the Health Department. (B. Blanchard Decl., Doc. No. 28-4 ¶ 19.)
In May 2017, King was transferred from E Pod to A Pod, where plaintiff Snead was housed. When she was transferred, King was covered with a visible rash but had been falsely told by the defendant that her condition was not contagious. Up until that time, no one in A Pod had contracted symptoms of scabies. King had repeatedly requested medical services and filed numerous grievances related to the lack of medical care, all of which were ignored.
When King arrived in A Pod, one of the inmates there who had received some medical training recognized that King had scabies. She informed the defendant of the problem but was ignored. King was placed in an eight-person cell, in close proximity with Snead and other inmates. The other inmates soon began developing their own rashes, and the defendant continued to take no action in the face of the inmates’ mounting complaints. The inmates were threatened with disciplinary action and solitary confinement if they complained about their condition or mentioned the word “scabies.” If they complained to their families and others outside the prison, their phone privileges were revoked in retaliation.
Snead developed a rash beginning just days after King’s transfer. She requested sick call and was seen by a nurse, who told her to change the type of soap she was using. Snead requested sick call a second time but was ignored. Thereafter, she began filing grievances due to the defendant’s refusal to provide her access to medical treatment. Being unable to sleep, she became physically ill, developing fever and chills, but was still refused medical treatment. From May 9, 2017 until her departure in June, Snead filed seven grievances, none of which was ever addressed by the defendant. Other inmates began filing daily grievances, all of which the
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defendant ignored. Assistant Warden Hayes visited E Pod on May 15, 2017. She indicated she had heard that
the inmates were complaining about a rash and asked how many were having problems. Approximately 100 women raised their hands. The plaintiffs allege that Assistant Warden Hayes scoffed. One inmate protested loudly that the inmates were being “eaten alive” and that something needed to be done. That inmate was handcuffed on the spot and placed in solitary for two weeks. On the same day, the facility was placed on lockdown for forty-eight hours. On May 17, 2017, Snead was able to communicate with her family, and her family reported the situation to the Metro Health Department and requested that it intervene.
Snead was transported to a dermatology clinic on May 19 after her family had made numerous complaints to the Health Department. She was diagnosed with scabies and prescribed a treatment regimen that included ivermectin tablets and two topical creams. In addition, the defendant was specifically informed that every inmate in Snead’s pod required treatment. Upon her return to MDCDF, the defendant told her that her prescriptions would not be filled. She was sent to solitary confinement, where she was deprived of a shower for five days, denied clean bedding and clothes, and was not allowed to contact her family.
Snead was released from custody a few weeks later. She immediately went to the ER to obtain medical treatment. She incurred hundreds of dollars in medical and other expenses in dealing with the scabies infestation upon her release.
The plaintiffs allege that, in May and June 2017, the defendant falsified, or had inmates falsify, sick-call requests and grievance forms to remove reference to the term “scabies” or to indicate that the inmates had received treatment when they had not. The defendant’s pharmacy nurse was absent for two weeks at the end of May and beginning of June 2017, during which
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time medications were not ordered or re-ordered. Throughout June 2017, the defendant continued to ignore sick-call requests from inmates requesting treatment for the rash caused by scabies and continued to threaten them if they mentioned “scabies.”
In early July 2017, the defendant’s Health Administrator falsely informed the inmates that no one at MDCDF had been diagnosed with scabies.
Finally, on or around July 17, 2017, the Health Department visited the facility. Twelve inmates who had filed grievances about lack of medical treatment were placed in solitary before the Health Department’s arrival and were unable to speak with Health Department representatives while they were there.
The plaintiffs allege permanent scarring from their scabies infestation and that they are still recovering. Some putative class members have been unable to return to work after release due to the risk of spreading infection to others and have lost wages as a result.
The plaintiffs allege that the defendant, despite actual knowledge of the infestation among the prison population and of the extremely contagious nature of the infestation, failed to take reasonable steps to mitigate the problem, to quarantine those affected to prevent the spread to others, or to effectively treat those affected. The spread of the contagion was reasonably foreseeable, and the defendant failed to take reasonable steps to prevent or mitigate it. They allege that, as a direct and proximate result of the defendant’s actions and inactions, the plaintiffs and putative class members became infested and suffered the consequences of terrible itching, pain, sleeplessness, and, after their release, quarantine, loss of wages, the costs of medical treatment, and the costs of remediating scabies infestations within their own homes and among family members.
Based on the factual allegations set forth in the Amended Complaint, the plaintiffs assert
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three causes of action under 42 U.S.C. § 1983: (1) a claim based on the defendant’s deliberate indifference to the plaintiffs’ and putative class members’ serious medical needs, in violation of the Eighth and/or Fourteenth Amendment (depending upon the inmates’ status as pretrial detainees or prisoners); (2) a claim based on the inmates’ exposure to, and the defendant’s failure to protect them from, a state-created danger, in violation of their rights under the Due Process Clause of the Fourteenth Amendment; (3) a deliberate indifference claim under the Eighth and/or Fourteenth Amendment, based on the defendant’s failure to train medical staff to address inmates’ obvious need to access adequate medical care and medication or to recognize outbreaks of contagious conditions including scabies, among other matters.
In support of their bid to bring a class action, the plaintiffs assert that the defendant has acted or refused to act in a manner that applies generally to the class, such that the claims for damages and injunctive relief on behalf of a class as a whole are appropriate; that questions of law and fact are common to all class members; that the number of persons whose rights have been violated is too numerous to join in the action; that the putative class members are readily identifiable using records maintained by the defendant during its regular course of business; that the plaintiffs have been injured by the defendant’s actions in the same way as the other members of the proposed class; and that the plaintiffs will fairly and adequately protect the interests of the class as a whole.
For relief, the plaintiffs seek monetary, compensatory, and punitive damages, as well as equitable relief in the form of “a permanent injunction enjoining the Defendant, its agents, [and] employees . . . from continuing to violate the Eighth and Fourteenth Amendments of the U.S. Constitution and to immediately cease intimidating, threatening, and retaliating against inmates for demanding medical care for their serious medical needs and to immediately provide adequate
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oral and topical medication sufficient to fully treat all those diagnosed with scabies” and that the defendant be required to “provide a full medical staff adequate to meet the needs of those infested with scabies and capable of dispensing medication and monitoring their treatment until completion.” (Doc. No. 15 ¶¶ 156–57.)
On September 25, 2017, this case was consolidated for all purposes with John Doe v. CoreCivic of Tennessee, LLC, No. 3:17-cv-00958, also pending in this court, in which the plaintiff purported to bring suit asserting claims on behalf of a putative class defined as inmates and former inmates at MDCDF who contracted scabies and were denied adequate medical attention by the defendant. John Doe, like Snead and Moredock, had already been released from incarceration by the time he filed his class action. A First Amended Class Action Complaint was filed on October 27, 2017, but it did not include John Doe as a “named” plaintiff.
The plaintiffs filed their Motion for Class Certification on December 20, 2017. (Doc. No. 19.) The motion proposes named plaintiffs Wendy Snead and Edward Moredock as representatives for all three subclasses and asserts that the proposed class and subclasses meet the numerosity, commonality, and typicality requirements of Rule 23(a) of the Federal Rules of Civil Procedure; that Snead and Moredock are adequate class representatives; and that a class should be certified under Rule 23(b)(1), (b)(2) and (b)(3). The plaintiffs filed a Supplemental Memorandum along with a Notice of Filing, to which are attached excerpts from Snead’s and Moredock’s depositions, along with the affidavits of seven putative class members and one former CoreCivic nurse, and the Declaration of plaintiffs’ attorney Bryant Kroll, to which are attached two grievances that were filed by a current CoreCivic nurse.
CoreCivic has filed a Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification (Doc. No. 31) (“Response”), arguing that none of the proposed subclasses meets the
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requirements for certification under Rule 23(a) or (b), as discussed in greater detail below. The plaintiffs filed a Reply (Doc. No. 32) in further support of their certification motion. II. Legal Standards for Class Certification
“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). “A class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. (citation and internal quotation marks omitted). To be certified, a class must satisfy the prerequisites set forth in Rule 23(a) of the Federal Rules of Civil Procedure: that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012).
In addition to showing that a proposed class meets all of the above prerequisites, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998), a motion to certify must establish that the proposed class meets one of the prerequisites under Rule 23(b). Subsection (b) provides that class certification is appropriate, assuming the 23(a) factors are met, if:
(1) 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
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to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) 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; or (3) 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). The party seeking class certification has the burden of proving the Rule 23 certification requirements. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Dukes, 564 U.S. at 350. “[C]ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,’” which “sometimes” requires “the court to probe beyond the pleadings.” Id. at 350–51 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)). “Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. [T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. (internal citations and quotation marks omitted). In other words, this typically “means that the class determination should be predicated on evidence presented by the parties concerning the maintainability of the class action.” In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851 (6th Cir. 2013). The district court has broad discretion to decide whether to certify a class. Young, 693 F.3d at 536. III. Analysis The defendant raises numerous objections to certification of each of the plaintiffs’
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proposed subclasses, asserting that the plaintiffs fail to satisfy many of the Rule 23(a) and any of
the Rule 23(b) requirements. Specifically, they argue that:
(1) the plaintiffs have failed to establish that any of the three proposed subclasses are sufficiently numerous that joinder of the absent class members would be impracticable; (2) the named plaintiffs are not adequate class representatives, because
(a) two named plaintiffs are not enough to represent three proposed subclasses; (b) the fact that each plaintiff falls into multiple subclasses raises potential conflicts of interest; (c) the plaintiffs have not distinguished between those who have been actually injured and those seeking only injunctive relief; (d) the named plaintiffs’ claims for injunctive relief are moot; and (e) the plaintiffs did not exhaust their administrative remedies; (3) the plaintiffs cannot establish the typicality requirement, again because their claims for injunctive relief are moot and they did not exhaust their administrative remedies; (4) the plaintiffs have failed to offer evidence sufficient to establish that they meet the requirements of Rule 23(b)(1) or (b)(2); (5) the plaintiffs fail to satisfy Rule 23(b)(3) because the subclasses are not “ascertainable,” common issues do not predominate over individual issues, and a class action is not superior to other methods of adjudication under the circumstances presented here. (See Doc. No. 31, at 1–2.)
The court will proceed to consider each requirement for certification in turn, in light of
the defendant’s objections.
A. Rule 23(a)
1. Adequate Representation
Rule 23(a)(4) allows a class to be certified only if “the representative parties will fairly
and adequately protect the interests of the class.” As set forth above, the defendant raises
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numerous arguments as to why the named plaintiffs fail to meet the adequacy of representation factor. One of these factors, standing, is a threshold matter that the court must address first.
a. Mootness “[A]ny analysis of class certification must begin with the issue of standing”; only once the court finds that the named plaintiffs have standing may it consider whether they have “representative capacity, as defined by Rule 23(a), to assert the rights of others.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). To show Article III standing, the named plaintiffs must show that they have been injured, that their injuries are fairly traceable to the defendants’ conduct, and that a judgment in their favor would likely redress their injuries. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The court notes, as an initial matter, that both named plaintiffs are former inmates of MDCDF, but the class and subclasses they propose to certify would be comprised of both current and former inmates. In addition to damages for alleged past violations, they seek to permanently enjoin the defendant and its agents from continuing to violate current inmates’ rights under the Eighth and Fourteenth Amendments by denying them adequate medical care and by intimidating and retaliating against those inmates who demand medical care. The plaintiffs also seek an injunction requiring the defendant to provide a fully staffed medical department adequate to meet prisoners’ medical needs. (Doc. No. 15 ¶ 154–55.) The defendant argues that the named plaintiffs’ claims for injunctive relief are moot as a result of their release from custody and that, accordingly, they cannot be deemed “adequate” to represent any class seeking injunctive relief. The plaintiffs respond that defendants should not be permitted to “endlessly circumvent Rule 23(b)(2)” by simply transferring each named plaintiff to a different facility and then claiming that the individual’s claims have been rendered moot. (Doc.
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No. 32, at 6.) Generally, a named plaintiff “must be a member of the class which he or she seeks to
represent at the time the class action is certified by the district court.” Sosna v. Iowa, 419 U.S. 393, 403 (1975). The Supreme Court has recognized that the “capable of repetition, yet evading review” exception to this rule may apply to a class action brought by pretrial detainees, noting that “[p]retrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). It appears that the plaintiffs are attempting to invoke that exception here.
There is a distinction, however, between claims rendered moot by the passage of time while a lawsuit is proceeding and claims that are already moot by the time a plaintiff files suit. “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” UAW v. Dana Corp., 697 F.2d 718, 720–21 (6th Cir. 1983) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). In other words, the mootness exception that applies in controversies that are “capable of repetition, yet evading review” presumes that the controversy is “live” at the time suit was filed and at the time of class certification. On the other hand, “if a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a federal judicial forum.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109 (1998) (“[T]he mootness exception for disputes capable of repetition yet evading review . . . will not revive a dispute which became moot before the action commenced.” (quoting Renne v. Geary, 501 U.S. 312, 320 (1991))). Because the named plaintiffs in this case had already been
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released from MDCDF at the time they filed suit, their claims for prospective injunctive relief had already been rendered moot, and they therefore lacked standing from the outset to bring such claims. As a result, the court lacks subject-matter jurisdiction to adjudicate the claims for injunctive relief, and those claims are subject to dismissal on that basis.
Ipso facto, the named plaintiffs are not adequate representatives of current inmates who might have valid claims for prospective injunctive relief. While former inmates and current inmates might have common claims for damages to compensate them for past injuries, a claim for injunctive relief would likely be a major component of the cause of action that would be brought by putative plaintiffs who are still incarcerated. Moreover, as indicated above, the adequacy inquiry frequently overlaps with the typicality requirement. The court finds that the adequacy of the named plaintiffs to represent currently incarcerated individuals is further called into question by the fact that the named plaintiffs’ claims are not typical of the types of claims currently incarcerated individuals would bring.
In short, the court finds that, because the named plaintiffs’ claims for prospective injunctive relief were moot before they filed suit, they lack standing to bring those claims. As a result, they cannot adequately represent the interests of a class that includes currently incarcerated inmates. The scope of the class the plaintiffs seek to represent must be narrowed to encompass only claims for damages brought by former MDCDF inmates, whether pretrial detainees or prisoners.
b. Exhaustion The defendant next argues that the named plaintiffs are not adequate representatives on the basis that they failed to exhaust their administrative remedies, as required by the Prison Litigation Reform Act (“PLRA”). The defendant insists that, once it raises a lack of exhaustion,
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the burden shifts to the inmates to demonstrate that they complied with the exhaustion requirements. Napier v. Laurel Cty., 636 F.3d 218, 225 (6th Cir. 2011). The plaintiffs, in response, argue that exhaustion is an affirmative defense that the defendant must plead and prove and, therefore, that it is not an appropriate inquiry at the certification stage. They also maintain that the question of whether the defendant’s administrative procedures were available for purposes of the PLRA’s exhaustion requirement is common to all members of the proposed class. (See Doc. No. 20, at 13.)
The court finds both parties’ arguments to be somewhat beside the point, at least with respect to the named plaintiffs. “Ordinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust administrative remedies before filing suit in court.” Porter v. Nussle, 534 U.S. 516, 523 (2002). Under the relevant provision of the PLRA, however, enacted in 1996, “[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) (emphasis added). The term “prisoner” is broadly defined to include “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” Id. § 1997e)(h). The named plaintiffs here, having already been released from incarceration at the time they filed suit, are not subject to the exhaustion requirement, since they were not prisoners when they filed suit. Accord Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017) (“The exhaustion requirement, however, does not apply to non-prisoners.”); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004) (“In determining whether a plaintiff is a ‘prisoner confined in jail, we must look to the status of the plaintiff at the time he brings his suit.” (collecting cases)).
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The question of exhaustion is therefore not relevant to the claims brought by the named plaintiffs as former inmates. This conclusion also strongly suggests that the named plaintiffs’ claims would not be “typical” of the claims that would be raised by current inmates, even inmates at other facilities, with respect to each of whom the affirmative defense of exhaustion would remain relevant and potentially dispositive.
c. Named Plaintiffs’ Adequacy as Class Representatives Finally, Rule 23(a)(4) allows a class to be certified only if “the representative parties will fairly and adequately protect the interests of the class.” This is an essential prerequisite for due process, as a final judgment in a class action binds all class members. In re Am. Med. Sys., 75 F.3d at 1083 (citation omitted). The Sixth Circuit applies a two-part test for determining the adequacy of representation. First, the named representatives “must have common interests with the unnamed members of the class,” and second, it must be apparent that the named representatives “will vigorously prosecute the interests of the class through qualified counsel.” Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). The “adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members.” In re Am. Med. Sys., 75 F.3d at 1083. The defendant argues only that the plaintiffs have failed to present any evidence regarding the named plaintiffs’ willingness to vigorously prosecute the interests of the class. But the defendant misstates the law. The named plaintiffs have expressed their willingness to prosecute this case by filing suit and beginning the discovery process. They have both been deposed, so there is no risk that they have “so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the
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possible competing interests of the attorneys.” Ross v. Abercrombie & Fitch Co., 257 F.R.D. 435, 451 (S.D. Ohio 2009). They have also alleged facts and presented evidence that, if a jury finds it to be true, would establish common interests with the unnamed members of a class consisting of former inmates who suffered from untreated scabies as a result of the defendant’s deliberate indifference to their serious medical needs. The defendant does not argue otherwise. And the plaintiffs’ attorneys have shown themselves willing and able to vigorously represent the interests of their clients.
d. Potential Conflicts of Interest The defendant’s arguments that the two named plaintiffs have potential conflicts of interest and that the plaintiffs have not made a distinction between putative plaintiffs who have actually been injured and those who seek injunctive relief only have been mooted by the court’s conclusion that the named plaintiffs have standing only to bring suit on behalf of a class of former inmates who suffered actual injury as a result of the defendant’s practices. The defendant’s argument that two named plaintiffs are not sufficient to represent three subclasses is rendered moot by the court’s conclusion, discussed below, that the plaintiffs have not satisfied the numerosity requirement except with respect to the Scabies Subclass.
2. Numerosity The first subdivision of Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” In re Am. Med. Sys., 75 F.3d at 1079. “There is no strict numerical test for determining impracticability of joinder. Rather, [t]he numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” Id. (internal quotation marks and citations omitted). The Sixth Circuit has suggested that the numerosity requirement is met when the class size reaches “substantial proportions.” Id. Some
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courts have found that classes with more than one hundred plaintiffs presumptively satisfy the numerosity requirement, because joinder of “hundreds of persons “would stretch the facilities and abilities of this Court beyond their elastic limit.” Ludwig v. Pilkington N. Am., Inc., No. 03 C 1086, 2003 WL 22478842, at *2 (N.D. Ill. Nov. 4, 2003). This court has observed that as few as forty class members may satisfy the numerosity requirement. See, e.g., City of Goodlettsville v. Priceline.com, Inc., 267 F.R.D. 523, 529, 2010 WL 1609964 (M.D. Tenn. 2010) (finding that the plaintiff’s identification of 128 counties and municipalities as class members satisfied the numerosity requirement, stating: “According to Newberg’s often-cited treatise, ‘the difficulty inherent in joining as few as 40 class members should raise a presumption that joinder is impracticable, and the plaintiff whose class is that large or larger should meet the test of Rule 23(a)(1) on that fact alone.’” (quoting 1 William B. Rubenstein, Alba Conte and Herbert B. Newberg, Newberg on Class Actions § 3:5 (4th ed.)).
a. Scabies Subclass The factual allegations in the Amended Complaint indicate that the numerosity requirement for the Scabies Subclass is met. In addition, the plaintiffs have filed several declarations from putative class members and excerpts from the named plaintiffs’ depositions. The evidence submitted by the plaintiffs suggests that that nearly every member of plaintiff Snead’s pod had symptoms of scabies at some point, and approximately fifty women signed two different letters to the Metro Health Department, stating that the then-undiagnosed rash affected eighty to one hundred women in the housing unit. (See Doc. No. 28-5 & Ex. A.) Similarly, plaintiff Moredock testified in his deposition that he observed approximately forty inmates just in his housing unit who appeared to have scabies and who were not receiving adequate treatment for it. (Doc. No. 28-2, at 42.) Leighanne Shye’s declaration states that she saw at least sixty
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women in her pod with the scabies rash (Doc. No. 28-6 ¶ 19), and Michael Quinn stated that there were at least fifty inmates in his pod who had scabies in the fall of 2016 (Doc. No. 28-9 ¶ 5). Billie Blanchard testified that 100 women in her pod had the rash. (Doc. No. 28-4 ¶ 16.)
In other words, the plaintiffs have identified several hundred individuals who were denied adequate treatment for scabies during the relevant time frame. Courts have not required evidence of exact class size to satisfy the numerosity requirement. Golden v. City of Columbus, 404 F.3d 950, 966 (6th Cir. 2005). Although the number is likely not so overwhelmingly large as to be prohibitive of joinder, the number of potential plaintiffs in the Scabies Subclass does make joinder impracticable. The court finds that the numerosity requirement has been met with respect to the Scabies Subclass.
b. “Denied Prescriptions” and “Denied Medical Attention” Subclasses The plaintiffs argue that the Declaration of Dawn Meyers, a former CoreCivic nurse who worked at MDCDF, establishes that the defendant routinely ran out of mental health and high blood pressure medication and would fail to refill prescriptions for those conditions for weeks. Her testimony also indicates that pill call was not announced in a manner in which inmates could hear it, thus depriving them of access to medication even when it was available. Similarly, the grievances drafted by Kendra Killian, a nurse currently employed by CoreCivic, constitute evidentiary support for the plaintiff’s claims regarding the defendant’s failure to train and failure to provide adequate care. (See Doc. No. 28-11.) However, while this evidence strongly suggests that the problems at CoreCivic are systemic and not isolated, the plaintiffs make no effort to estimate the number of persons, whether current or former inmates, who would make up these subclasses. They simply argue instead that “[t]he class action device is particularly well-suited in actions brought by prisoners due to the fluid composition of the prison population” and that
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“[c]lass actions . . . generally tend to be the norm in actions such as this.” (Doc. No. 32, at 3 (quoting Braggs v. Dunn, 317 F.R.D. 634, 654 (M.D. Ala. 2016)).)
Although, as stated above, there is no strict numerical test for determining impracticability of joinder, and “the exact number of class members need not be pleaded or proved,” Golden v. City of Columbus, 404 F.3d 950, 966 (6th Cir. 2005) (citation omitted), the “impracticability of joinder must be positively shown, and cannot be speculative.” Id. (citation omitted). Here, the plaintiffs have failed to provide even a vague estimate of the number of inmates who would fall within these two subclasses, and they have presented no evidence to support a conclusion that the individuals who would qualify as members of these proposed subclasses are so numerous that joinder of each would be impracticable.
Courts have also recognized that other factors besides “hard numbers” may be relevant to the numerosity inquiry, including “(1) judicial economy arising from the avoidance of a multiplicity of actions; (2) the geographic dispersion of class members; (3) the financial resources of class members; (4) the ability of claimants to institute individual lawsuits; (5) the amount of each member’s individual claim; (6) knowledge of the names and existence of the potential class members; and (7) whether potential class members have already joined other actions.” Powell v. Tosh, 280 F.R.D. 296, 303 (W.D. Ky. 2012) (citation omitted), motion for reconsideration granted on other grounds, No. 5:09-CV-121, 2012 WL 2601946 (W.D. Ky. July 5, 2012). Besides offering no “hard numbers,” the plaintiffs have not presented evidence or discussed the potential impact of any of these other factors on the court’s analysis.
The court finds, therefore, that the plaintiffs have not offered sufficient evidence to meet the numerosity requirement with respect to the proposed “Denied Prescriptions” and “Denied Medical Attention” Subclasses. Because the plaintiffs bear the burden of showing that each of
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the Rule 23(a) requirements is met with respect to each subclass, the court finds that the plaintiffs have not carried their burden of establishing that certification of the latter two subclasses is warranted. The court will consider the other factors only as they apply to a proposed Scabies Subclass.
3. Commonality and Typicality In order for a class to be certified under Rule 23(a)(2), there must be “questions of law or fact common to the class.” Traditionally, to satisfy the commonality requirement of Rule 23(a)(2), plaintiffs have to show only one single issue that is common to all members of the class, not multiple issues. In re Am. Med. Sys., 75 F.3d at 1080; Alkire v. Irving, 330 F.3d 802, 820 (6th Cir. 2003) (“Although Rule 23(a)(2) refers to common questions of law or fact, in the plural, there need only be one question common to the class—though that question must be a ‘common issue the resolution of which will advance the litigation.’” (quoting Sprague v. Gen. Motors, 133 F.3d 388, 397 (6th Cir. 1998)). “Many courts have held that when the legality of the defendant’s standardized conduct toward all members of the proposed class is at issue, the commonality factor is ordinarily met.” Modern Holdings LLC v. Corning, Inc., No. 5:13-cv00405-GFVT, 2018 WL 1546355, at *6 n.5 (E.D. Ky. March 29, 2018) (citations omitted). “Commonality and typicality tend to merge because both of them serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 542 (6th Cir. 2012) (internal quotation marks and citations omitted). “Like the test for commonality, the test for typicality is not demanding and the interests and claims of the various plaintiffs need not be identical.” Reese v. CNH Am., LLC, 227
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F.R.D. 483, 487 (E.D. Mich. 2005). The plaintiffs assert that they “readily satisfy the low standard for commonality” and that
there are “numerous questions of fact and law that are common to all of the members of the proposed class.” (Doc. No. 20, at 14, 13.) These common questions include: (1) whether the defendant was deliberately indifferent to the need to implement policies and hire and train staff to prevent the spread of scabies at MDCDF; (2) whether the defendant was deliberately indifferent to the serious medical needs of the individual members of the proposed class; (3) whether the defendant had a policy or practice of failing and refusing to provide adequate medical care to inmates and pretrial detainees; (4) whether the defendant was deliberately indifferent to the need to adequately train its employees to handle the obvious medical needs of inmates; and (5) whether the defendant knowingly or with deliberate indifference tolerated a custom and practice of retaliating against inmates who requested medical care or a referral to outside medical care.
The defendant does not argue that the plaintiffs have failed to satisfy the commonality or typicality requirements, except to argue that “[t]here is no evidence of common conduct or a common injury that would be susceptible of resolution via a single injunction.” (Doc. No. 31, at 16.) It is plain, as set forth above, that the named plaintiffs do not have standing to bring claims for prospective injunctive relief, and the scope of the proposed class will be modified accordingly. The court nonetheless finds, for purposes of the motion to certify, that the named plaintiffs have satisfied the commonality and typicality requirements for the Scabies Subclass of former inmates, consisting of former inmates who had a rash consistent with a scabies infestation and who were denied treatment, or whose delayed treatment by the defendant caused the inmate’s condition to worsen, since October 1, 2016.
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B. Rule 23(b) Having concluded that the plaintiffs have met the Rule 23(a) requirements with respect to a narrowed Scabies Subclass, the court must next consider whether class certification is appropriate under Rule 23(b)(1), (b)(2), or (b)(3). The plaintiff argues that all three subsections of Rule 23(b) apply. The defendant argues that none of them applies.
1. Rule 23(b)(1) Although the plaintiffs cite to Rule 23(b)(1) generally, they apparently rely only on Rule 23(b)(1)(A), which authorizes certification of a class when “inconsistent or varying adjudications with respect to individual class members . . . would establish incompatible standards of conduct for the party opposing the class.” The rule “requires more than a risk that separate judgments would oblige [the defendant] to pay damages to some class members but not to others or pay them different amounts.” 7AA Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 1773, at 13. In fact, some courts have held that Rule 23(b)(1)(A)is “not appropriate in an action for damages.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1193 (9th Cir. 2001); see also Cohen v. Office Depot, Inc., 204 F.3d 1069, 1083 n.7 (11th Cir. 2000) (“Because Cohen’s class seeks compensatory damages, it cannot be certified as a (b)(1)(A) class.”). Here, in support of their claim that a class action is warranted under this rule, the plaintiffs argue only that, in the absence of a class action, “this Court would face numerous pro se complaints filed in forma pauperis. This is a waste of judicial resources that would inevitably lead to the inconsistent or varying adjudications due to the lack of legal scholarship that accompanies such lawsuits.” (Doc. No. 20, at 18.) In response, the defendant argues that the waste of judicial resources is not a relevant criterion for considering whether class certification is
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appropriate under Rule 23(b)(1)(A). It also points out that the plaintiffs do not address the more critical factor—whether potentially inconsistent or varying adjudications “would establish incompatible standards of conduct” for CoreCivic. (Doc. No. 31, at 15 (quoting Fed. R. Civ. P. 23(b)(1)(A)).) The plaintiffs do not address this argument in their Reply or attempt to offer any additional support for class certification under this Rule.
The court finds that this rule does not justify class certification. The risk of varying adjudications in this case appears to stem from the possibility that some class members will suffer greater or lesser damages than others, and not from the possibility that different outcomes would impose conflicting obligations on the defendant.
2. Rule 23(b)(2) This rule applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief and corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The Supreme Court has expressly held that claims for monetary relief may not be certified under this provision, “at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). Because neither injunctive nor declaratory relief is available to the named plaintiffs, the plaintiffs cannot establish that they are entitled to class certification under Rule 23(b)(2).
3. Rule 23(b)(3) The Supreme Court has recognized that Rule 24(b)(3) is “[f]ramed for situations in which ‘class-action treatment is not as clearly called for’ as it is in Rule 23(b)(1) and (b)(2) situations” but “permits certification where class suit ‘may nevertheless be convenient and desirable.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quoting Adv. Comm. Notes, 28
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U.S.C. App. at 697). To qualify for class certification under Rule 23(b)(3), a class must meet two requirements in addition to those set forth in Rule 23(a). They must show that: (1) common questions of law or fact must “predominate over any questions affecting only individual members”; and (2) a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “Subdivision (b)(3) parallels subdivision (a)(2) in that both require that common questions exist, but subdivision (b)(3) contains the more stringent requirement that common issues ‘predominate’ over individual issues. In re Am. Med. Sys., 75 F.3d at 1084. In addition, courts have recognized that “class ascertainability” is “an essential prerequisite of a class action, at least with respect to actions under Rule 23(b)(3).” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 592 (3d Cir. 2012).
The defendant argues that certification under Rule 23(b)(3) is not appropriate because (1) the class is not ascertainable; (2) common issues do not predominate over individual issues; and (3) a class action is not superior in this case to individualized litigation.
a. Whether the Class Is Ascertainable “[T]he class must be currently and readily ascertainable based on objective criteria.” Marcus, 687 F.3d at 592–93 (citing cases). “If class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Id. at 593. Further, “[s]ome courts have held that where nothing in company databases shows or could show whether individuals should be included in the proposed class, the class definition fails.” Id. (citing cases). “A party seeking class certification must affirmatively demonstrate his compliance with” Rule 23. Dukes, 564 U.S. at 350 (2011). That same rule applies to the question of ascertainability. Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013). The plaintiffs aver generally that “[m]embers of the proposed classes will be readily
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identifiable and it will be fairly easy to provide notice of the pending action.” (Doc. No. 20, at 19–20.) They suggest that some class members can be identified through the defendant’s records by reviewing sick-call requests and determining whether and, if so, when they were addressed by the defendant. (See id. at 16 (referring to ascertainability of the “Denied Medical Access Class”).) The defendant argues only that the class is not ascertainable because the plaintiff’s definition of class shows that it is an impermissible fail-safe class.
A “fail-safe” class is one that is “defined in terms of success on the merits,” Mullins v. Direct Digital, LLC, 795 F.3d 654, 660 (7th Cir. 2015), that is, “one that is defined so that whether a person qualifies as a member depends on whether the person has a valid claim,” Messner v. Northshore Univ. HealthSys., 669 F.3d 702, 825 (7th Cir. 2012). In other words, a fail-safe class is one in which any class member either wins or, by virtue of losing, is defined out of the class and is therefore not bound by the judgment.” Id. “Stated differently, for a class definition to create a fail-safe class, the definition must be framed in terms of the defendant’s ultimate liability or the central legal issue in the plaintiff’s claims.” Erin L. Geller, The Fail-Safe Class As an Independent Bar to Class Certification, 81 Fordham L. Rev. 2769, 2782 (2013). For example, “[c]ourts have held that a class definition is framed in terms of the defendant’s liability and thus creates a fail-safe class when there is statutory language embedded in the class definition, when the verdict is embedded in the class definition, or when there is a reference to a legal right or entitlement.” Id. at 2782–83.
The class the plaintiffs seek to certify, as narrowed by the court’s discussion above, is now effectively defined to include former MDCDF inmates who, since October 1, 2016, had a skin rash consistent with a scabies infestation and who were denied treatment altogether or whose delayed treatment by the defendant caused the inmate’s condition to worsen. The
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proposed class would not be a fail-safe class, because the class definition does not reference the defendant’s liability. Class members would fall within the definition if they suffered from a rash that was not treated promptly or at all during the relevant time frame, but they can still lose if they fail to establish that the delay in, or denial of, treatment arose from a policy or custom of the defendant that amounted to deliberate indifference to a serious medical need.
Moreover, the members of the class should be objectively ascertainable based on the defendant’s records—assuming the inmates submitted sick-call requests and assuming the defendant maintained such sick-call requests among its records. Even if the defendant did not keep adequate records of sick-call requests or if class members failed to submit sick-call requests related to possible scabies in light of the apparent futility of doing so or a fear of retaliation, class members could likely still be ascertained based on responses to questionnaires to former inmates.
b. Whether Individual Issues Predominate Over Common Issues “To satisfy the predominance requirement in Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007) (internal quotation marks and citations omitted). However, “the fact that a defense may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” Id. (internal quotation marks and citation omitted). Thus, for example, “[c]ommon issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.” Id. The plaintiffs argue that they have all asserted that the defendant violated their constitutional rights by being deliberately indifferent to their serious medical needs, specifically
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with respect to the failure to prevent a scabies outbreak in the first place, to promptly recognize and deal with an outbreak when it inevitably occurred, to prevent the spread of the infestation, or to diagnose and adequately treat those inmates who contracted the condition. They argue that their failure-to-train and state-created-danger claims similarly require the same proof regarding the defendant’s failures to act and that the same legal standards will govern each case. The defendant argues that the plaintiffs’ threadbare identification of the common legal issues does not satisfy their burden, as “the predominance inquiry requires an in-depth examination of Plaintiffs’ claims and an examination regarding how a trial on the merits would proceed.” (Doc. No. 31, at 20.) The defendant also insists that individualized proof of proximate cause and injury predominate over any common questions.1
To establish a claim of deliberate indifference under 42 U.S.C. § 1983, whether under the Eighth or Fourteenth Amendment, the plaintiffs must show that the defendant “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005). And, because the plaintiffs sue CoreCivic and not individual corrections officers and medical practitioners, they must show that a CoreCivic “policy or custom” caused the alleged violation of their rights. Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 625 (6th Cir. 2011) (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). In addition, each plaintiff would be required to establish damages resulting from the defendant’s deliberate indifference.
In this case, the plaintiffs have presented the affidavits or declarations of seven putative
1 The defendant also argues that the Prison Litigation Reform Act (“PLRA”) governs this action which, in and of itself, militates against a finding that common issues predominate. Because the class as it now stands is defined as former prisoners only, the PLRA, which governs civil rights actions brought by “prisoner[s] confined in a jail, prison, or other correctional facility,” 42 U.S.C. § 1997e, is not applicable.
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class members (Doc. Nos. 28-3 through 28-9), in addition to excerpts from Snead’s and Moredock’s depositions (Doc. Nos. 28-1, 28-2). The individuals uniformly attest that they experienced an infestation that they believe to have been scabies or which was actually diagnosed as scabies. Their experiences vary widely with regard to the manner in which the defendant’s staff responded to the condition. In some cases, the defendant never acknowledged that the condition was scabies and never treated it; in other cases, the individual inmate received partial treatment or treatment only after a substantial delay. Some experienced re-infestation; some incurred substantial out-of-pocket expense to deal with treatment after release. Although the individuals’ experiences vary substantially, these variations would primarily govern the type and amount of damages that would be sufficient to compensate each plaintiff, assuming the defendant’s liability is proven. Moreover, while the issue of damages would require individualized proof, the question of liability would largely be determined by the common issues identified above.
“To demonstrate commonality for the purposes of Rule 23(a)(2), . . . a prospective class must show that its claims ‘depend upon a common contention . . . of such a nature that it is capable of classwide 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.’” Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 550 (7th Cir. 2016), reh’g en banc denied (Aug. 3, 2016) (quoting Dukes, 564 U.S. at 350). The Seventh Circuit has explained why, under Dukes, it found that the plaintiffs had not identified a common question in a class action brought by students against a public school district, alleging that the district delayed or denied disabled students’ entry into individualized education programs in violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1440 et seq., as follows:
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To illustrate the commonality problem in the certified class, consider two hypothetical students within the class: one has a disability and would be eligible for special education but has never been identified as being disabled nor gone through the IEP process; another was identified as disabled and received a timely IEP meeting, but the child’s parents did not attend the IEP meeting and were not notified of their right to do so. Both scenarios involve violations of the IDEA, but what common question can be answered that would assist the court in determining [the district’s] liability for each? On the plaintiffs’ theory, that question is something like this: Did [the district] fulfill its IDEA obligations to each child? But while that generic question is surely a part of both children’s claims, it must be answered separately for each child based on individualized questions of fact and law, and the answers are unique to each child's particular situation.
Phillips, 828 F.3d at 551 (quoting Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 498 (7th Cir.
2012)); see also Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014) (“Where the
defendant’s alleged injurious conduct differs from plaintiff to plaintiff, . . . no common answers
are likely to be found.”). The Seventh Circuit also noted, however, that “an illegal policy might
provide the ‘glue’ necessary to litigate otherwise highly individualized claims as a class,” but
found that the Jamie S. plaintiffs had failed to present proof of any such policy. Phillips, 828
F.3d at 551.
In Phillips, current and former pretrial jail detainees brought claims under § 1983 against
the county and county sheriff, alleging deliberate indifference to their need for dental care. The
district court initially certified two classes, one “(b)(2)” class seeking injunctive relief only,
consisting of “[a]ll persons presently confined at the Cook County Jail who are experiencing
dental pain and who have waited more than seven days after making a written request for
treatment of that pain without having been examined by a dentist,” and the other a “(b)(3)” class,
seeking damages, consisting of “[a]ll inmates housed at Cook County Department of Corrections
on or after January 1, 2007, who have made a written request for dental care because of acute
pain and who suffered prolonged and unnecessary pain because of lack of treatment.” Smentek v.
Sheriff of Cook Cty., No. 09 C 529, 2014 WL 7330792, at *1 (N.D. Ill. Dec. 22, 2014). After a
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bench trial on injunctive relief, the court decertified the (b)(2) class, largely on the basis that the original grounds for injunctive relief—which were also the basis for the court’s initial finding of commonality—had been rendered moot by an intervening action against Cook County by the Department of Justice, which resulted in a consent decree specifically requiring improved dental care and adequate dentist staffing to avoid unreasonable delays in dental care. Phillips, 828 F.3d at 545. Specifically, the common question of the inadequately low number of dentists no longer existed, and the dental care provider had “implemented policies that aligned with national standards.” Id. at 548. The district court granted the defendant’s motion to decertify on the grounds that “there was no longer a single identifiable remedy that could help all class members.” Id. at 549.2 Without a certifiable class, the court also denied as moot the motion for a permanent injunction. The Seventh Circuit affirmed, finding that the district court had not abused its discretion in decertifying the (b)(2) class.
The court also rejected the plaintiffs’ alternative proposed “common” questions, which were whether the jail’s failure to require a face-to-face evaluation with a nurse within twenty four hours of a written complaint of dental pain result in gratuitous pain, and whether the jail’s failure to provide timely “return to clinic” appointments result in gratuitous pain, both of which concerned delays in medical treatment. The Seventh Circuit observed that it had previously held that
when assessing deliberate indifference claims, a delay in medical treatment is not a factor that is either always, or never, significant. Instead, the length of delay that is tolerable depends on the seriousness of the condition and the ease of providing treatment. The more significant the dental pain, the more immediate is the need for treatment. In determining whether such complaints can be characterized appropriately as presenting a common question susceptible to class resolution,
2 The court modified the (b)(3) class to encompass only those detainees whose claims arose when the jail had only one dentist. The Seventh Circuit noted that that class’s claims remained pending.
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careful examination of the context is crucial. Id. at 555 (internal citations and quotation marks omitted). The court found that the delays in question in that case were inherently contextual. That is, “simply establishing that detainees at the Jail consistently wait more than twenty-four hours does not advance materially any individuals’ claim of deliberate indifference.” Id. at 556 Likewise, the question of whether a return-to-clinic visit was “timely” would depend on the precise nature of the individual detainee’s dental problem. In light of the inherently contextual nature of the questions, the court held that “the district court did not abuse its discretion in concluding that the questions the detainees present about the length of delay in medical treatment are incapable of being solved on a classwide basis.” Id. at 556.
On the other hand, the court distinguished cases in which the plaintiffs were able to “present classwide evidence that a prison is engaging in a policy or practice which rises to the level of a systemic indifference,” in which courts were able to identify “‘conduct common to members of the class’ which advances the litigation.” Id. at 557 (quoting Suchanek, 764 F.3d at 756, and citing Parsons v. Ryan, 754 F.3d 657, 679–80, 683 (9th Cir. 2014) (finding a “common question” in a lawsuit brought by prison inmates who alleged, and presented proof, that the prison severely understaffed medical facilities and had a practice of placing inmates in isolation with insufficient nutrition, noting that the “class members are as one in their exposure to a particular and sufficiently well-defined set of allegedly illegal policies and practices, rather than only in their advancement of a general Eighth Amendment legal theory”); Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430 (7th Cir. 1989) (finding that the plaintiff stated a claim of systemic deliberate indifference where a prison allegedly had failed to make any changes to its procedures following the death of an inmate who had been prescribed medicine over the phone); Wellman v.
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Faulkner, 715 F.2d 269, 272–74 (7th Cir. 1983) (finding that the plaintiff alleged systemic deficiencies at a prison where two out of three physicians could not communicate effectively with patients because of a language barrier, a staff psychiatrist position had been unfilled for two years, prisoners had been denied vital surgeries for two to five years, and medical supplies were being reused because they had not been restocked)). Likewise, where the plaintiffs asserted class claims of fraudulent misrepresentation against a seller of pharmaceuticals, the Seventh Circuit found that a “common question” existed as to whether the seller had made fraudulent statements that its product has been “clinically tested and “scientifically formulated.” Mullins v. Direct Dig., LLC, 795 F.3d 654, 673 (7th Cir. 2015). The court found in that case that the plaintiffs’ claims hinged, not on whether individuals received health benefits from the product, but on whether the defendant’s representations were deceptive, which could be answered “in one stroke.” Id. (quoting Dukes, 564 U.S. at 350).
In Phillips, the court also reinforced the principal that the common question “need not resolve every issue in the case” and that it is “routine in class actions to have a final phase in which individualized proof be submitted.” Phillips, 828 F.3d at 551 (quoting Suchanek, 764 F.3d at 756). Thus, for example, in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012), the court certified a class based on the presentation of a common question of whether the defendant employer had implemented employment policies that potentially had a discriminatory impact. Id. at 488–89. The court found that, if the plaintiffs prevailed on their claim of a disparate impact, “hundreds of separate trials may be necessary to determine which class members were actually adversely affected. . . . But at least it wouldn’t be necessary in each of those trials to determine whether the challenged practices were unlawful.” Id. at 491. In short, a common question generally requires “conduct common to members of the
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class,’” Suchanek, 764 F.3d at 756 (emphasis in original), and the common question must “drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (internal quotation marks omitted).
Based on these principles, the court finds that the plaintiffs have presented a common question based on allegedly unconstitutional policies and customs of the defendant. Further, it appears to the court, at this juncture, that the common question of whether the defendant was deliberately indifferent at the corporate level predominates over individual questions of the amount and type of damages each individual plaintiff might have suffered as a result of such policies.
c. Whether a Class Action Is Superior to Individual Actions Rule 23(b)(3) identifies factors that are relevant to a determination of whether a class action is superior to individual actions, including “class members’ interests in individually controlling the prosecution . . . of separate actions,” “the extent and nature of any litigation concerning the controversy already begun by . . . class members,” “the desirability . . . of concentrating the litigation . . . in the particular forum, and “the likely difficulties in managing a class action.” Id. “While the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high,” it does contemplate the “vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Amchem Prods., 521 U.S. at 616 (internal quotation marks and citation omitted). The Supreme Court, in fact, has recognized that “[t]he policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.” Id. (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir.
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1997)). The plaintiffs here argue that the individual class members’ interest in controlling the
prosecution of separate actions is low and suggest, without actual evidence, that “[t]his case has been highly publicized and Plaintiffs’ counsel have been contacted by numerous members of the proposed classes, none of [whom] have filed litigation or announced any intention to do so.” (Doc. No. 20, at 19.) Second, they argue that this court is a “highly desirable forum” in which to litigate, given that the defendant is organized here, venue for all similar claims is appropriate in this court, and “it makes no sense to have dozens of simultaneous” and almost identical cases pending in the same court. (Id.) Third, they argue that members of the class are readily identifiable and that notice in the pending action should not pose substantial difficulty, particularly, again, because nearly all of the class members will be found within this forum. And finally, they claim, without reference to any actual evidence in the record, that the case involves relatively small individual recoveries, “possibly under $250” for many of the individuals, as a consequence of which individual plaintiffs would be discouraged from bringing individual lawsuits. (Id. at 20.)
The defendant, on the other hand, argues that the need for individualized proof on the elements of proximate cause and injury renders the proposed (b)(3) class “unmanageable”; that the plaintiffs have “neglected to present the Court with a trial plan” regarding how they intend to manage the litigation and prove their claims; that the plaintiffs have not provided actual proof that each individual’s damages are low or that there is limited interest by individuals in pursuing their claims outside of a class; and that the plaintiffs ignore the fact that at least eight detainees have already filed individual actions in this court against CoreCivic relating to exposure to, or contraction of, scabies. (Doc. No. 31, at 24–25.)
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The court notes as an initial matter that, of the eight cases referenced by CoreCivic,3 all were filed pro se by plaintiffs who are, or were at the time they filed suit, still inmates at MDCDF; four have already been dismissed for failure to exhaust; in one, a Report and Recommendation is pending recommending dismissal for failure to prosecute; and in another, a recently filed motion for summary judgment is pending. In the remaining two, dispositive motions have not yet been filed but likely will be. Generally, the posture and disposition of these cases together weigh in favor of a finding that a class action is appropriate: clearly, none of these plaintiffs was individually able to enlist the aid of an attorney, and their attempts to pursue their claims individually have been largely unsuccessful. Moreover, the fact that these individuals were all still incarcerated at the time suit was filed removes them from a putative class of already-released individuals seeking retrospective damages relief only, and the defendants have not pointed to any scabies-related lawsuits filed by claimants after their release from MDCDF. In other words, the class members do not appear to have a strong interest in individually controlling the prosecution of separate actions.
Second, this court is a desirable forum for the reasons cited by the plaintiffs: the defendant is located here and MDCDF is located here, meaning that most of the plaintiffs will also be located here. Venue is clearly appropriate here, and all or nearly all discovery materials should be located in this district as well. Regarding damages, though the plaintiffs have failed to offer any actual proof of the value of any plaintiff’s claims, the court nonetheless finds their assessment of the value of the majority of claims to be realistic in light of the types of damages
3 See Pearson v. CoreCivic, Inc., No. 3:17-cv-950; Whitsett v. CoreCivic, Inc., No. 3:17cv-1091; Hawkins v. Metro. Gov’t of Nashville, No. 3:17-cv-1127; Vaughn v. CoreCivic, Inc., No. 3:17-cv-1146; Norris v. CoreCivic, Inc., No. 3:17-cv-1150; Mass v. CoreCivic, Inc., No. 3:17-cv-1206; Hunter v. CoreCivic, Inc., No. 3:17-cv-1269; Vaughn v. CoreCivic, Inc., No. 3:17cv-1303.
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sought. And finally, regarding the management of the case, the court finds that the defendant’s
concerns are overwrought. The question of CoreCivic’s policies and customs pertaining to the prevention, spread, and treatment of a highly communicable and common parasitic infestation predominates in this case, and the court is aware that individual assessments of each individual’s damages may ultimately be necessary. This factor alone does not override the conclusion that a class action is superior to individual actions to determine the defendant’s liability. IV. Conclusion
For the reasons set forth herein, the plaintiffs’ Motion for Class Certification (Doc. No. 19) will be granted in part. The court will deny certification of the “Denied Prescriptions” and “Denied Medical Attention” Subclasses and deny certification of any class under Rule 23(b)(1) or (b)(2), because the named plaintiffs lack standing to bring claims for injunctive or declaratory relief. The court will grant the motion insofar as it will conditionally certify a class defined as all former inmates of MDCDF who are not currently incarcerated and who, while still incarcerated at MDCDF, had a skin rash consistent with a scabies infestation and who were denied treatment, or whose delayed treatment caused the condition to worsen, since October 1, 2016.
An appropriate Order is entered herewith. ENTER this 27th day of June 2018.
____________________________________ ALETA A. TRAUGER United States District Judge
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