IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, BOBINETTE D. FEARCE, )

PATRICIA KNIGHT, MARGUERITE

)

RICHARDSON and REBECCA L. SCOTT,

)

Prisoners residing at FLUVANNA

)

CORRECTIONAL CENTER FOR WOMEN,

)

Route 250 West,

)

Troy, VA 22974,

)

)

Individually, and on behalf of all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. __-________

) (Judge

)

HAROLD W. CLARKE

)

Director

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

A. DAVID ROBINSON

)

Chief of Corrections Operations

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

FREDERICK SCHILLING

)

Director of Health Services

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

PHYLLIS A. BASKERVILLE

)

Warden

)

FLUVANNA CORRECTIONAL CENTER

)

FOR WOMEN

)

Route 250 West

)

Troy, VA 22974,

)

)

and

)

)

ARMOR CORRECTIONAL HEALTH

)

SERVICES, INC.

)

4960 S.W. 72nd Ave.

)

Suite 400

)

Miami, FL 33155

)

)

SERVE: CT CORPORATION

)

4701 Cox Rd., Suite 301

)

Glen Allen, VA 23060-6802,

)

)

and

)

)

JOHN/JANE DOE, M.D.

)

Acting Medical Director

)

FLUVANNA CORRECTIONAL CENTER

)

FOR WOMEN

)

Route 250 West

)

Troy, VA 22974,

)

)

Defendants.

)

)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs Cynthia B. Scott, Bobinette D. Fearce, Patricia Knight, Marguerite Richardson

and Rebecca L. Scott (collectively, “the named plaintiffs”), for themselves individually and on

behalf of a class of additional unnamed plaintiffs similarly situated, submit this Complaint

seeking declaratory and injunctive relief against defendants Harold W. Clarke, John M. Jabe,

Frederick Schilling, Phyllis A. Baskerville, Armor Correctional Health Services, Inc., and

John/Jane Doe, M.D., Acting Medical Director of the Fluvanna Correctional Center for Women

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(“FCCW”) (collectively “defendants”). The named plaintiffs hereby allege, on the basis of their personal knowledge, information and belief, as follows:
NATURE OF THE CASE 1. This is an action brought by the named plaintiffs, prisoners residing at FCCW, a facility of the Commonwealth of Virginia Department of Corrections, located in Troy, Virginia, seeking declaratory and injunctive relief to address and remedy the failure of FCCW, on a systemic, pervasive and on-going basis, to provide its residents with medical care sufficient either in nature or in extent to satisfy the minimum standards mandated by the Eighth Amendment to the United States Constitution. 2. The named plaintiffs seek preliminary and permanent relief from defendants’ knowing and intentional failure, acting under color of State law, to provide the named plaintiffs and all other similarly-situated women residing at FCCW with medical care adequate to protect them from substantial existing, on-going and/or imminent physical injury, illness and undue risk of premature death in deliberate indifference to their rights under the Eighth Amendment to be free from cruel and unusual punishment.
JURISDICTION AND VENUE 3. The named plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, because it arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3), because it seeks to redress the deprivation, under color of State law, of rights, privileges and immunities secured to the named plaintiffs and the members of the class they seek to represent by the Constitution and laws of the United States. This Court has authority to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure.
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4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), because one or more of the defendants reside in this judicial district, and because all or a substantial part of the events, acts and/or omissions giving rise to the named plaintiffs’ claims occurred in this judicial district.
PARTIES A. Plaintiffs 5. Plaintiff Cynthia B. Scott, a 42-year old African-American woman, has been incarcerated at FCCW since 2003. Ms. Scott, who is serving a sentence that expires in 2040, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, sarcoidosis, a potentially life-threatening disease involving cellular inflammation in and around vital organs such as her lungs, liver, spleen and pancreas, as well as her eyes. Ms. Scott also suffers from a potentially life-threatening pulmonary embolism. 6. Plaintiff Bobinette D. Fearce, a 60-year old African-American woman, was first incarcerated at FCCW in 1998 upon its opening, after eleven years of imprisonment at Goochland Correctional Center for Women. Ms. Fearce, who is serving a sentence that may expire in or about 2017, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, degenerative cervical spine and disc disease, carpal tunnel syndrome affecting both of her wrists, chronic severe pain in multiple parts of her body, incontinence due to a weak and failing bladder, and temporomandibular joint disorder resulting in a misaligned left jaw. 7. Plaintiff Patricia Knight, a 55-year old African-American woman, has been incarcerated at FCCW since 2006. Ms. Knight, who is serving a sentence that expires in the latter half of 2012, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, diminished strength and gripping capacity in
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her hands and weight-bearing capacity in her legs due to a stroke suffered in 2005, chronic and severe pain in her neck, back and knees due to the effects of degenerative spinal disc disease and arthritis, and chest pain due to angina. Ms. Knight also suffers from chronic reflux symptoms and nausea associated with after-effects of gastric bypass surgery she had prior to her arrival at FCCW.
8. Plaintiff Marguerite Richardson, a 56-year old Caucasian woman, has been incarcerated at FCCW since 1998. Ms. Richardson, who is serving a sentence that will expire between 2030 and 2042, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, high blood pressure and poor circulation, Hepatitis C, a large growth underneath her right ribcage which has yet to be definitively diagnosed, intense and chronic pain in her lower back, right hip and right leg, ankle and foot believed to be associated with either degenerative disc disease, sciatica and/or arthritis, and MRSA, a highly-contagious form of bacterial infection.
9. Plaintiff Rebecca L. Scott, a 29-year old Caucasian woman, has been incarcerated at FCCW since 2000. Ms. Scott, who is serving a sentence that expires in 2015, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, profound deafness, a recurring, extremely painful deformed toenail on the big toe of her right foot and disabling chronic back pain attributable to misalignment of bones adjacent to her spine.
B. Defendants 10. Defendant Harold W. Clarke is the Director of the Commonwealth of Virginia Department of Corrections (“VDOC”). As such, Mr. Clarke is the legal custodian of all prisoners sentenced to periods of incarceration by the courts of Virginia for felony offenses, and is responsible for the safe, secure and humane housing and treatment of those prisoners,
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including the plaintiffs. VDOC retains a nondelegable duty under the Constitution and laws of the United States and of the Commonwealth of Virginia to ensure that the medical care provided to prisoners residing in its correctional facilities meets or exceeds applicable constitutional minimum standards.
11. Defendant A. David Robinson is the Chief of Corrections Operations of VDOC. In that capacity, Mr. Robinson, upon information and belief, exercises general supervisory authority over VDOC’s provision of medical care services to prisoners incarcerated in VDOC correctional facilities.
12. Defendant Frederick Schilling is the Director of Health Services of the VDOC. In that capacity, Mr. Schilling, upon information and belief, exercises direct day-to-day supervisory authority over the provision, under contract, of medical care services to prisoners incarcerated in VDOC correctional facilities by defendant Armor Correctional Health Services.
13. Defendant Phyllis A. Baskerville is an employee of VDOC and has served as the Warden of FCCW since sometime in 2011. In this capacity, Ms. Baskerville is directly responsible at all times for the safe, secure and humane housing and treatment of all prisoners residing at FCCW, including the plaintiffs.
14. Defendant Armor Correctional Health Services, Inc. (“Armor”), is a for-profit corporation, organized and existing under the laws of the State of Florida and maintaining its principal place of business in Miami, Florida. On or about October 18, 2011, Armor assumed contractual responsibilities, pursuant to modifications to an existing contract between Armor and VDOC -- Contract DOC-05-024-Armor -- to provide all medical, dental and mental health services needed to afford adequate and necessary health care to all prisoners residing at certain VDOC correctional facilities, including FCCW. In this capacity, Armor replaced and/or
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succeeded Corizon Health, Inc., formerly known as PHS Correctional Healthcare (formerly known as Prison Health Services, Inc.) (“PHS”), which provided healthcare services to prisoners residing at FCCW, subject to the terms and conditions of Contract DOC-05-024-PHS, from April 19, 2006 and continuously thereafter until these obligations were transferred to and assumed by Armor in October 2011.
15. Armor, in succeeding to and assuming PHS’ rights and obligations as the contractual provider of healthcare services at FCCW, and retaining essentially the same medical staff as was previously employed by PHS, effectively adopted and ratified PHS’ prior policies and customs with respect to the systemic failure to provide necessary and appropriate medical care and/or provision of deficient medical care to prisoners at FCCW, as its own.
16. Defendant John/Jane Doe, an employee and/or agent of Armor, assumed responsibilities as the Acting Medical Director of FCCW on or about July 2, 2012. He/she filled the position previously occupied by David MacDonald, M.D., an employee and/or agent of Armor and, upon information and belief, the Medical Director at FCCW as an employee or agent of PHS, and subsequently Armor, since 2008. Dr. MacDonald’s responsibilities, policies and practices remained consistent over the course of his employment at FCCW by both companies. Defendant Doe, his/her predecessor Dr. MacDonald, and the employees and/or agents of Armor working under his/her or Dr. MacDonald’s supervisory authority, are directly responsible for the provision of adequate, appropriate and humane medical care services to all prisoners residing at FCCW, including the named plaintiffs, as contemplated by the Constitution and laws of the United States and of the Commonwealth of Virginia, as well as in accordance with Armor’s contractual obligations to VDOC.
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17. Each of the individual defendants is sued in his or her official capacity. At all times relevant to the events, acts and/or omissions alleged in this Complaint, the individual defendants and Armor, individually and collectively, have acted under color of State law, pursuant to their authority and responsibilities as officials, employees and/or agents of the Commonwealth of Virginia.
FACTUAL BACKGROUND A. FCCW And Its Medical Services 18. FCCW, which was conceived, designed and constructed specifically for the purpose of serving as a “model” women’s prison, opened in 1998. The facility houses approximately 1,200 prisoners (about forty percent of the total number of women prisoners in Virginia), a majority of whom are 35 years of age or older and are serving median sentences of 20 years. FCCW was designed to include a 68,000-square foot medical building in which medical, dental and mental health services are provided for the women comprising FCCW’s own general population. The medical unit also serves incarcerated women with serious medical problems residing in other VDOC facilities, who are transferred to FCCW for the purpose of receiving a heightened level of care. 19. Subject to the supervision and oversight of defendant Doe and, previously, Dr. MacDonald, the Medical Director at FCCW, Armor employs a Medical Staff consisting of Donald A. Remaly, M.D., another general practice physician, and approximately 10-to-15 additional health care providers including, upon information and belief, registered nurses, licensed practical nurses and certified nursing assistants. 20. These registered nurses, licensed practical nurses and certified nursing assistants perform the initial “intake” examinations of prisoners upon their arrival at FCCW, the purpose of which is to review each prisoner’s medical history and make specific notations regarding the
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prisoner’s existing condition(s), medical needs (if any) and pending course of treatment, in order to determine what each such prisoner might need by way of continuing attention and/or treatment during her term of incarceration at FCCW.
21. The nurses also preside over and administer the “Sick Call” process at FCCW. At Sick Call, prisoners complaining of health problems, having submitted a written request for care, are screened and evaluated for the purpose of determining their need for an appointment with a physician. Absent waivers which are virtually never granted, each prisoner is charged a $5.00 “co-pay” fee for each Sick Call visit. The nurses staffing Sick Call are also authorized to administer first aid and dispense, in limited quantities, non-prescription pain medication.
22. Under the Sick Call protocol, persons lacking the medical training and experience of physicians, certified physicians’ assistants or registered nurses, are delegated the responsibility and authority to determine whether a prisoner will be scheduled for an appointment with a doctor and what, if any, treatment short of a doctor’s appointment an ailing prisoner will receive. Only upon referral to a doctor will the prisoner be accorded the opportunity to have an appropriately-trained medical professional determine whether she merits or requires enhanced treatment or care by a specialist outside of FCCW.
23. Apart from the routine Sick Call process, prisoners may submit a request for care on an emergency basis; however, FCCW, upon information and belief, virtually never honors prisoners’ requests for emergency medical care, regardless of the true circumstances or the prisoners’ actual needs.
24. The nursing staff also has responsibility for distributing prescription medication to prisoners through the “Pill Line” process in which, often under extremely harsh conditions -such as having to stand outdoors in a single-file line at 3:00-4:00 a.m., exposed to rain, snow,
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severe cold or excessive heat on a nightly basis -- the prisoners are ostensibly provided with the medication dictated by their various ailments and conditions. With disturbing regularity, however, prisoners may stand in the Pill Line for one hour or more, under harsh circumstances, only to receive the incorrect prescription, or to be told that their medication was forgotten back at the Infirmary by the nurses, or is simply unavailable because delivery of the medication to FCCW is late arriving or was never even ordered in the first place because the prescription was misplaced or the order was not placed due to “oversight”.
B. The Named Plaintiffs’ Individual Medical Issues And Claims 25. Plaintiff Cynthia Scott, who is 42 years of age, suffers from asthma and a host of other serious medical problems. In connection with a complaint that she was having great difficulty breathing, she was seen at Sick Call in August 2009 for what was originally believed to be chronic bronchitis. 26. By the time Ms. Scott was seen at Sick Call for a follow-up examination regarding what was thought to be bronchitis in September 2009, she had begun to experience a lack of appetite and significant weight loss. No cause was determined for these symptoms. 27. Based upon her complaints that she was experiencing hot and cold sweats, continued breathing problems and a continuing significant weight loss, Dr. Remaly saw Ms. Scott in February 2010. He told her that her symptoms were the result of the on-set of the early stages of menopause. He also stated that her body was rejecting protein and that she needed a higher-protein diet. Although a blood test confirmed the existence of a protein deficiency, nothing was done by FCCW to alter or improve her diet. 28. During the first six months of 2010, Ms. Scott, without either dieting or exercising, lost more than 40 pounds, in regard to which early menopause and a protein deficiency were the only explanations offered by FCCW Medical Staff.
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29. On or about June 18, 2010, in response to Ms. Scott’s ongoing complaints of severe shortness of breath, a chest x-ray was taken. A nurse-practitioner informed Ms. Scott that the x-ray showed the presence of large masses in each of her lungs, which the nurse stated were probably cancer. Not until then was Ms. Scott sent to the University of Virginia Medical Center (“UVA”) for CT-scans, which were conducted on July 7 and July 14, and a lung biopsy on July 19, 2010.
30. On August 5, 2010, UVA oncologists told Ms. Scott that she has sarcoidosis -- a disease in which abnormal collections of chronic inflammatory cells (granulomas) form as nodules within the chest cavity which, in some cases, may cause respiratory failure and death -rather than lung cancer. The specialists prescribed 40 mgs. per day of Prednisone for 30 days, followed by a reduction in the dosage to 20 mg./day for an additional 60 days, after which she was to have a follow-up examination.
31. Upon Ms. Scott’s return to FCCW, Dr. MacDonald, without any consultation with her UVA specialists, summarily reduced her prescription to 30 mg./day of Prednisone (rather than 40 mg./day) for the first 30 days followed by 20 mg./day for the next 40 days (instead of 60 days).
32. On or about November 7, 2010, Ms. Scott informed FCCW Medical Staff that she had run out of medication. In response, she was given 10 mgs./day of Prednisone from November 8 through November 17, after which her medication ran out again. As a result of another complaint, she was given 5 mg./day of Prednisone from November 24 to December 7, 2010.
33. On December 16, 2010, Ms. Scott had her follow-up appointment with her specialists at UVA. This was the first time that she or her doctors learned that Dr. MacDonald
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had departed from the prescribed course of medication that the UVA doctors had established in August. The UVA specialists placed Ms. Scott back on 10 mg./day of Prednisone for three months, and specifically instructed that FCCW carry out the prescription as ordered, without deviation.
34. Ms. Scott’s UVA Health System medical records for October 27, 2011 report that, as of that date, her sarcoidosis had spread to her liver and spleen. Her UVA doctors were hampered in their attempt to conduct a six-minute treadmill test to assess the adverse impact of the sarcoidosis on her lung capacity due to the fact that her legs were bound in shackles that the FCCW correctional officer accompanying her to UVA refused to remove.
35. Ms. Scott has repeatedly sought, and continues to seek, specific information regarding the implications of her sarcoidosis diagnosis, the course of future treatment that is to be followed for her illness and her long-term prognosis. FCCW Medical Staff has ignored or, in any event, failed to respond to her inquiries.
36. In January 2012, Ms. Scott began to experience severe swelling in her lower left leg. Dr. Remaly thought that the swelling might be attributable to birth-control pills (Nortrel) that Ms. Scott had been taking regularly over the course of many years, and ordered that she discontinue the medication.
37. Despite termination of the birth-control pills, the severe swelling did not abate, but rather got worse, and Ms. Scott initiated a series of Sick Call visits, sometimes two or three per week, seeking treatment. None was provided.
38. On or about the evening of May 1, 2012, with the swelling so extreme that Ms. Scott lost feeling in her toes and felt that her lower leg was likely to burst open, correctional officers in Ms. Scott’s building summoned an FCCW nurse to examine Ms. Scott in the Nurse’s
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Station. The nurse immediately called and left a message for Dr. MacDonald, who came to examine Ms. Scott the next morning at 6:15 a.m. After a brief examination, Dr. MacDonald advised Ms. Scott that the swelling was due to arthritis and that she should put on a pair of support stockings to alleviate the problem.
39. Certain that arthritis was not the cause of the extreme, painful swelling, Ms. Scott placed a call to her mother, who then contacted Dr. MacDonald by telephone to express her serious concerns regarding her daughter’s condition. Dr. MacDonald assured Ms. Scott’s mother that Ms. Scott was being “well taken care of”.
40. On May 3, 2012, Ms. Scott was seen by Dr. Remaly for a regularly-scheduled appointment regarding her sarcoidosis. Dr. Remaly rejected Dr. MacDonald’s conclusion that Ms. Scott’s swollen leg was attributable to arthritis, and ordered that she be sent to UVA for an ultrasound of her leg and foot. The following day, Dr. MacDonald again examined Ms. Scott and informed her that someone would come to FCCW on May 8, 2012 to perform the ultrasound.
41. Not until late in the afternoon on May 10, 2012 was the ultrasound on Ms. Scott finally conducted. The examiner told Ms. Scott that she “didn’t like what she saw” and ordered that Ms. Scott be taken immediately to the Emergency Room at UVA Medical Center. An ultrasound performed upon Ms. Scott’s arrival at UVA confirmed that she had a blood clot in her left leg, and a subsequent x-ray examination established that fragments of the blood clot had traveled to her lungs. She was immediately admitted to UVA for an overnight stay and started on injections of Levenox, an anticoagulant.
42. After receiving Levenox injections in her stomach at 9:00 p.m. on May 10 and at 9:00 a.m. the following morning, Ms. Scott was released from UVA and returned to FCCW on the afternoon of May 11, 2012. She was told that she was to continue to receive abdominal
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injections of Levenox twice a day for seven days, with blood work to be performed at regular intervals to ensure that the medication was working properly, and that after seven days, she would transition to Coumadin (Warfarin), an alternative anticoagulant available in pill form which she would likely need to take for the rest of her life.
43. Upon her arrival back at FCCW, a nurse, at Dr. MacDonald’s direction, removed from Ms. Scott’s possession the copy of the written directions explaining her intended course of treatment that had been provided to her at UVA. Ms. Scott did not receive the Levenox injection at 9:00 p.m. on the evening of May 11 that she was supposed to receive. At 4:00 a.m. Pill Line on May 12, she was informed by a nurse that there were no orders regarding any injections she was to be provided. Ms. Scott returned to her cell and immediately prepared and submitted an Emergency Medical Grievance. It was returned, signed by the same nurse Ms. Scott had spoken to at Pill Line, indicating that her prescribed medication would have to be ordered. At the 9:45 a.m. Pill Line later on May 12, Ms. Scott received one 120 mg. injection.
44. In the following days, Ms. Scott received only one 120 mg. injection of Levenox based on Dr. MacDonald’s instructions, rather than two injections of 100 mgs. each as had been expressly ordered by her treating physician at UVA, causing Ms. Scott grave concern that potentially life-threatening blood clots in her system are not being treated properly. Finally on May 15, she began to receive injections of 100 mg. of Levenox twice per day.
45. Ms. Scott has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to her serious medical problems and needs.
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46. Plaintiff Bobinette Fearce, who is 60 years of age, was diagnosed with a degenerative disc disease and had surgery in 2001, which was performed by Dr. Gregory Helm, a neurosurgeon at UVA. The surgery involved the fusing of two vertebrae in the front of her neck. Although extended physical therapy was prescribed for Ms. Fearce to assist her rehabilitation from this surgery, Ms. Fearce was provided with limited physical therapy only irregularly, during the first three months after her return to FCCW, which was then discontinued entirely.
47. In late 2007, Ms. Fearce began to experience a loss of strength in her hands, as well as a loss of balance when standing, and was returned to UVA for a series of diagnostic examinations and tests by the neurological specialists on staff there, including an MRI in December 2007 and a CT-scan in March 2008.
48. The tests showed that Ms. Fearce is suffering from further degenerative disc disease at several different levels of her cervical spine, which was of a “significant” degree of severity in some areas and “mild” in others. The UVA specialists also determined that Ms. Fearce has “moderately severe right and mild left” carpal tunnel syndrome.
49. In regard to treatment of Ms. Fearce’s bilateral carpal tunnel syndrome, Dr. Helm prescribed that she be provided wrist splints, and noted that if the splints were ineffective, carpal tunnel release, a form of corrective surgery, should be the next step.
50. Ms. Fearce was supplied with wrist splints by FCCW in 2008, but they were ineffective in relieving her symptoms and she continues to suffer severe pain and weakness in her arms and wrists and numbness in her fingers, even when her wrists are immobilized.
51. In mid-2009, Ms. Fearce continued to complain of severe chronic pain and discomfort in her neck, back and wrists associated with the degenerative cervical spinal disease and carpal tunnel syndrome from which she suffers. Dr. Remaly, rather than referring
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Ms. Fearce back to her UVA specialists for further examination and treatment (including the carpal tunnel release surgery that had previously been prescribed), decided to treat Ms. Fearce’s condition by providing her with injections of Prednisone and hydrocortisone to her wrists and back on a twice-monthly basis. The injections, which commenced in August 2009, proved ineffective to relieve Ms. Fearce’s pain and other symptoms within a few months’ time.
52. Despite Ms. Fearce’s repeated pleas to be sent back to UVA for further examination by Dr. Helm and/or other neurological specialists with the training and experience to assess her condition and devise an effective (or, at a minimum, a more effective) course of treatment, FCCW Medical Staff has refused to refer Ms. Fearce back to UVA for specialized care. As a result, the extent of the further progression of Ms. Fearce’s degenerative spine disease, and its possible adverse impact upon Ms. Fearce’s overall health and well-being, have not been assessed since March 2008.
53. In the meantime, FCCW has disregarded Ms. Fearce’s need for an altered course of medication and treatment, including physical therapy, to address her constant, chronic pain. In response to one complaint by Ms. Fearce regarding the inadequacy of her prescribed pain medications, Dr. MacDonald refused to either change Ms. Fearce’s medication or increase her dosage, stating that “[t]here are risks to taking long-term Tylenol and non-steroidal antiinflammatory drugs (NSAIDS). We try to limit the use of these, in order to avoid the risks of liver and kidney disease.” Dr. MacDonald’s solution was to advise Ms. Fearce to purchase the over-the-counter form of Tylenol from the FCCW Commissary. FCCW, however, limits the amount of medication a prisoner may purchase at the Commissary at any one time to twelve packets, each containing two 325-mg. tablets, and also limits the frequency with which such purchases may be made to once every 10 days-to-two weeks, even assuming that Ms. Fearce
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possessed sufficient financial resources to purchase her own pain medications on a regular basis, given her limited ability to perform wage-earning jobs within the Prison in light of her myriad physical ailments. These factors combine to eliminate any realistic possibility that Ms. Fearce could effectively offset her deficient course of prescription medication for severe chronic pain through the purchase of packets of over-the-counter Tylenol tablets, at her own expense, from the Commissary.
54. Due to a chronic bladder problem dating from sometime in 2004, Ms. Fearce suffers from incontinence, and must wear adult diapers at all times. In late 2006, Ms. Fearce was sent to UVA for an examination, and a specialist diagnosed “pneumaturia and stress incontinence of urine” relating to “moderate to marked descensus of the bladder.” Surgery involving the insertion of a “mid-urethral sling” was prescribed. However, upon Ms. Fearce’s return to FCCW, Dr. MacDonald informed her that she is “too old” to be afforded the surgery that would correct her bladder condition.
55. Dr. MacDonald issued Ms. Fearce a Medical Profile -- a written authorization prepared by the Medical Staff allowing an prisoner some form of special accommodation for specific medical reasons -- allowing her to use the bathroom on an as-needed basis, and to utilize the laundry facilities to wash her clothes on an as-needed basis if they became soiled, in recognition of her incontinence. However, Dr. MacDonald later arbitrarily rescinded the Medical Profile upon the demand of FCCW Correctional Staff, despite no change in Ms. Fearce’s medical condition or resulting physical needs, based solely upon alleged security concerns that have never been explained to Ms. Fearce or articulated in writing insofar as she is aware.
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56. As a result of the rescission of the Medical Profile granting Ms. Fearce bathroom and laundry privileges, Ms. Fearce has frequent occasions on in which she wets herself and soils her clothing or bedding, which she is not permitted to wash until her next regularly-scheduled access to the laundry, whenever that might be. These incidents cause Ms. Fearce to experience extreme personal discomfort, embarrassment and humiliation, and subject her to ridicule by other prisoners.
57. Ms. Fearce suffers from temporomandibular joint (TMJ) disorder, a condition that began to cause her serious problems in 2007-08. Ms. Fearce’s jaw is misaligned upon closure due to the disorder. It causes her, on a recurring basis, to inadvertently bite herself on the inner wall of her left cheek, as well as her tongue. Repeated accidental bites to the same areas of her inner cheek and tongue have resulted in cuts and bruises that never have the chance to heal and have become ulcerated, making it extremely painful for Ms. Fearce to eat, as well as to talk. Ms. Fearce has repeatedly sought appointments with FCCW Medical Staff and/or Dental Staff seeking treatment for the cuts, bruises and open sores in her mouth attributable to her TMJ disorder.
58. At an appointment conducted on or about June 3, 2010, Dr. Remaly told Ms. Fearce that she requires corrective dental treatment to address her TMJ disorder and misaligned bite, without which the internal damage to her cheek and tongue will recur indefinitely.
59. On June 15, 2010, Ms. Fearce was seen for examination by Dr. Wood, a dentist on staff at FCCW. Dr. Wood advised Ms. Fearce that she needs braces, and oral surgery, to permanently correct her TMJ disorder, but that neither of these measures would be provided to Ms. Fearce during her incarceration at FCCW because they are too expensive.
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60. Dr. Wood devised a multi-step strategy intended to partially mitigate the continuing adverse effects of Ms. Fearce’s TMJ problem. Dr. Wood indicated that she would schedule an appointment to fill cavities that are present in certain of Ms. Fearce’s teeth, and took a molded impression of Ms. Fearce’s teeth in order to create a permanent tooth guard for Ms. Fearce to wear to protect against accidental bites after the cavities were filled. Dr. Wood also used a file to dull the sharp edges of some of Ms. Fearce’s teeth, in order to make inadvertent bites to her inner cheek and tongue less penetrating, painful and harmful.
61. Subsequent to the mid-June 2010 appointment with Dr. Wood, no follow-up appointment for the filling of Ms. Fearce’s cavities was scheduled or provided. In addition, the filing of the sharp edges of Ms. Fearce’s teeth by Dr. Wood left those teeth painfully sensitive to heat, cold and any hard substances Ms. Fearce attempts to chew. Meanwhile, Ms. Fearce’s TMJ disorder remains untreated, and her misaligned teeth continue to cause extremely painful accidental biting of her inner cheek and tongue, aggravating prior cuts and sores and creating new ones for which FCCW Medical Staff’s sole advice is that she gargle with salt water in an attempt to ward off infections.
62. Due to the host of medical problems with which she is afflicted including, in particular, a chronically stiff and sore neck and back attributable to her degenerative disc disease, as well as arthritis in her left hip and right knee, Ms. Fearce must often walk with a cane. This is significantly more difficult due to the numbness and weakness in her hands and wrists caused by her bilateral carpal tunnel syndrome.
63. In recognition of Ms. Fearce’s mobility challenges and in order to provide her with better access to the Infirmary and the locations where meals are served and Ms. Fearce takes continuing education classes, Ms. Fearce was provided a Medical Profile in or about
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November 2009, indicating that she should be transferred to a one-person cell in Building 2, a centrally-located housing unit at FCCW.
64. Ms. Fearce was residing in general population in a double cell in Building 3, awaiting the transfer to a single cell in Building 2 dictated by her Medical Profile when, as of June 29, 2010, Ms. Fearce was transferred, at the direction of FCCW Correctional Staff, to a cell in Building 5, the residential unit located farther away from the various locations to which Ms. Fearce must walk on a frequent basis than any other housing unit at FCCW.
65. Ms. Fearce complained about her transfer to Building 5, on the grounds that the action was in direct contradiction of her Medical Profile, and that walking from Building 5 to the Infirmary, meals, classes, etc., was causing her undue pain and harm. Her Medical Profile for her transfer to a single cell in Building 2 was summarily rescinded by FCCW Medical Staff based on alleged security considerations raised by Correctional Staff bearing no relationship to any legitimate medical justification. Not until September/October 2010 was Ms. Fearce finally transferred from Building 5 to Building 2, where she resided until recently.
66. Bathroom access is critical for prisoners like Ms. Fearce who have medical problems that make it difficult, if not impossible, for them to wait long periods of time to use the bathroom. In addition to the incontinence from which Ms. Fearce suffers, as addressed above, she also must take laxatives several times a week that assist her in relieving herself. A recent change in internal policy at FCCW, involving the implementation of a nighttime bathroom “list”, means that during overnight hours when Ms. Fearce calls the guard in the building in which she resides to indicate her need to use the bathroom, her name is placed at the end of a list of other prisoners who asked to use the bathroom before her. At times, the wait has been as long as fiftyfive minutes, causing Ms. Fearce great emotional distress and/or in having to relieve herself in
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her diaper. To compound the problem, after years of having a Medical Profile providing her with the opportunity to reside in a single cell in which Ms. Fearce was permitted to change her diaper and to change out of soiled clothing, when necessary, in privacy, Ms. Fearce’s Medical Profile was recently revoked and she was reassigned to a double cell that she must share with a roommate. Ms. Fearce’s incontinence and need to utilize diapers has not changed, and the justification for her prior Medical Profile for a single cell remains the same. Dr. MacDonald, in response to Ms. Fearce’s grievance, stated that she did not qualify for a single cell.
67. By letter dated June 13, 2012, directed to defendant Warden Baskerville by undersigned counsel from the Legal Aid Justice Center on Ms. Fearce’s behalf, Ms. Fearce’s serious concerns regarding the adoption of the nighttime bathroom list policy and the revocation of her Medical Profile for a single cell were raised and immediate corrective action on the part of FCCW was requested. Although a prompt response to the letter was sought, Warden Baskerville never responded to the June 13 letter.
68. Meanwhile, Ms. Fearce was suddenly transferred to a Ward in the Infirmary shared with five other women, where she is being confined without access to any recreational activities or the opportunity to attend religious services or education classes. Based upon several comments by Dr. MacDonald to Ms. Fearce referencing “the June 13 letter”, it appears that Ms. Fearce is being retaliated against for having attempted to raise legitimate concerns with respect to the nature and quality of her medical care at FCCW through the assistance of legal counsel.
69. Ms. Fearce has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to Ms. Fearce’s serious medical problems and needs.
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70. Plaintiff Patricia Knight, who is 55 years of age, suffered a stroke while incarcerated at the Piedmont Regional Jail in or about April 2005 which resulted in her temporary loss of weight-bearing capacity in her legs as well as the loss of strength and gripping capacity in her hands. In 2006, Ms. Knight was transferred to FCCW so that she could receive rehabilitative care.
71. Because Ms. Knight was unable to walk at the time of her arrival at FCCW, she was immediately admitted to the Infirmary following her intake screening. Ms. Knight remained in the Infirmary for 11 months. During that time, she was not provided with any physical therapy. As a result, the loss of strength and gripping capacity in Ms. Knight’s hands essentially became permanent. Some of the weight-bearing capacity returned to Ms. Knight’s legs over time despite FCCW’s failure to provide any physical therapy. However, her ability to walk remains severely compromised due to her difficulties in holding and supporting a walker or a cane because of the weakness in her hands.
72. In 2007, Ms. Knight began to suffer from severe neck pain, for which she sought medical attention. Ms. Knight had to request repeated Sick Call visits over a period of nearly six months before she was finally referred for an appointment with a doctor, who acknowledged her need for specialized treatment. Ms. Knight subsequently had surgery at the Medical College of Virginia (“MCV”) to remove the C3 and C4 disks from her neck in order to relieve the severe pain she was experiencing.
73. After this surgery, Ms. Knight’s treating specialists at MCV prescribed physical therapy to assist her rehabilitation upon her return to FCCW. But, again, FCCW failed to provide it.
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74. Ms. Knight has routinely recurring severe neck and back pain, but receives no chronic care for her on-going condition. Instead, she must repeatedly submit Sick Call requests seeking medical attention, and, per FCCW policy, is charged a $5.00 “co-pay” for each individual Sick Call visit. This imposes an extreme economic hardship upon Ms. Knight given her physical incapacity to work in order to earn money.
75. When Ms. Knight arrived at FCCW at 2006, she was taking Ranexa, a prescription medication used to treat chronic chest pain (angina). Thereafter, FCCW discontinued Ms. Knight’s Ranexa prescription without explanation. A doctor at MCV involved in treating Ms. Knight in connection with her spinal surgery in 2007 advised her that she needed to resume taking Ranexa, but upon her return to FCCW, Dr. MacDonald rejected this instruction on the grounds that the medication was too expensive.
76. Ms. Knight, in late 2010, requested physical therapy to address extreme pain in her knees attributable to arthritis. Dr. MacDonald responded that Ms. Knight’s knee pain is due to excessive body weight, and that exercise and weight loss would reduce pressure on Ms. Knight’s joints without any need for physical therapy. Dr. MacDonald ignored the fact that the constant weakness and pain in Ms. Knight’s legs and her inability to walk without a walker or a cane essentially preclude her from exercising with sufficient frequency and vigor to cause meaningful weight loss. Meanwhile, Ms. Knight’s repeated requests for pain medication stronger than over-the-counter Tylenol for her chronic and severe knee, back and neck pain have been either ignored or refused by FCCW Medical Staff.
77. Ms. Knight had gastric bypass surgery prior to her arrival at FCCW in 2006. Recently, Ms. Knight has become increasingly concerned that the partitioning of her stomach or the stomach-intestine or stomach-bowel connections established by the surgery may be failing,
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as she has begun experiencing severe reflux symptoms and nausea during and after every meal. Ms. Knight has initiated numerous Sick Call visits based on these ill feelings, and has requested that she be referred to a specialist knowledgeable with respect to the after-effects and possible complications associated with the surgical procedure she had. FCCW Medical Staff has ignored, or refused to respond to, her requests for assistance.
78. Ms. Knight has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to Ms. Knight’s serious medical problems and needs.
79. Plaintiff Marguerite Richardson, who is 56 years of age, suffers from high blood pressure and poor circulation, for which use of the prescription drug Lasix has been directed. The drug has a diuretic effect on Ms. Richardson, causing her to have frequent need to use the bathroom.
80. Ms. Richardson has repeatedly requested FCCW Medical Staff to issue her a Medical Profile granting her bathroom privileges on an as-needed basis, but these requests have been rejected on the grounds that the Profile would not be honored by Correctional Officers in any event and that bathroom access is a “security issue” subject to the sole discretion of the Warden. Ms. Richardson has been subjected to disciplinary charges on multiple occasions when she has used the bathroom without prior permission in order to avoid urinating on herself.
81. Ms. Richardson has been told that she has Hepatitis C, an infectious disease affecting the liver, caused by the Hepatitis C virus (HCV), which is often asymptomatic. Since learning that she carries the HCV, Ms. Richardson has repeatedly requested that she be provided information regarding its effects, and treatment to the extent treatment is appropriate. FCCW
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Medical Staff has ignored or refused to respond to Ms. Richardson’s numerous inquiries. She is completely uncertain as to what, if any, adverse impact HCV may be having on her health and well-being.
82. Ms. Richardson has a large growth located under her right ribcage that causes her severe pain and discomfort. At various times, a nurse told Ms. Richardson that the growth might be a hernia of her liver, and Dr. Remaly suggested that the growth might be attached to her stomach wall. In response to Ms. Richardson’s requests for tests to establish a definitive diagnosis and a plan for treatment, Dr. MacDonald wrote a note on February 21, 2011, stating: “If you have a hernia, surgeons will usually not repair. If it is protruding (bulging) and you cannot reduce it, let me know.” FCCW Medical Staff has failed to make any further response to Ms. Richardson’s continuing efforts to find out the nature of her condition and how it might be treated.
83. Ms. Richardson suffers from intense chronic pain in her lower back, and shooting pains and numbness through her right hip and down her right leg, ankle and foot. Although FCCW Medical Staff have suggested to Ms. Richardson at various times that she has degenerative disc disease, sciatica and/or arthritis, Ms. Richardson remains uncertain of the cause of the severe pain she is experiencing and has repeatedly requested examination and testing. In February 2011, Dr. MacDonald responded that Ms. Richardson’s problem “has been determined to be lumbar pain with a loss of sensation to part of [her] lower extremities,” and stated that “no further tests are needed at this time.” Apart from this statement, which merely describes her reported symptoms, Ms. Richardson’s entreaties have not received any response.
84. In the Spring of 2011, Ms. Richardson sought medical attention through Sick Call visits for a number of small, painful sores or boils on the back of her lower left leg.
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Ms. Richardson was prescribed an antibiotic -- Bactrim -- to treat the sores, but they did not go away and continued to cause her pain through the Summer and Fall.
85. In January 2012, Ms. Richardson’s severely swollen, discolored left foot was examined by Dr. Remaly, and fluid was extracted for analysis. Ms. Richardson’s prescribed dosage of Bactrim was increased, but she was not provided any medication for pain. The test results were not revealed to her.
86. Ms. Richardson continued to experience severe swelling and extreme pain in her lower leg and foot. Emergency medical grievances she filed seeking treatment and pain medication were disregarded.
87. Finally, at a Sick Call visit in May 2012, one of the FCCW nurses called up the results of Ms. Richardson’s prior test on a computer in the Infirmary and informed her that she had Methicillin-resistant Staphylococcus aureus (MRSA), a highly contagious form of bacterial infection which may be fatal if left untreated. Only after this disclosure was Ms. Richardson’s medication changed from Bactrim to Keflex, which has begun to gradually treat the infection in an effective manner.
88. Ms. Richardson has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to Ms. Richardson’s serious medical problems and needs.
89. Plaintiff Rebecca Scott, who is 29 years of age, has experienced, over several years, a recurring problem with an extremely painful deformed toenail on the big toe of her right foot, which causes her great discomfort and makes it very difficult for her to walk on a day-today basis.
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90. Ms. Scott has put in numerous requests for Sick Call visits to have the toe examined, and has seen Dr. Remaly for the problem. Despite her extreme pain and discomfort, however, Dr. Remaly has told Ms. Scott that there is nothing wrong with the toenail, and he has refused to provide her with any treatment other than to trim the nail so close to the skin that her toe itself has been cut and become infected, making her condition even more painful.
91. After a nurse suggested that Ms. Scott contact Dr. MacDonald, she did so in November 2010, requesting that he arrange for her to see a specialist who could remove the toenail permanently. In a written response to her request, Dr. MacDonald stated: “Toe nail fungus is frustrating. Some people have realized that putting oil/tabasco sauce or hair products under the toe nail kills the fungus. I have had some success on the outside with Vick’s VaporRub/tabasco sauce/etc.”
92. Ms. Scott contacted Dr. MacDonald again, pointing out that her problem is not “toe nail fungus” but rather a deformed toenail that she wanted permanently removed. In midDecember 2010, Dr. MacDonald responded as follows: “Toe nail fungus is a frustrating problem. Your toe nail was removed. When a nail is removed, it may grow back crooked. Repeated toe nail removal may not help. If you continue to have problems, [contact me again].”
93. Subsequent to this exchange, Ms. Scott’s on-going attempts to obtain effective and/or specialized care for her deformed toenail condition have drawn no response from FCCW Medical Staff. The extreme pain and discomfort in her foot continue.
94. For several months, Ms. Scott has been requesting a referral to an outside ear/nose/throat (ENT) specialist that FCCW Medical Staff has consistently refused to honor. Ms. Scott’s hearing, which is already substantially diminished due to her profound deafness, is
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adversely affected each time her tonsils become infected and inflamed, a condition she experiences several times a year.
95. Dr. Remaly has told Ms. Scott that she needs to have her tonsils removed to prevent the recurring tonsillitis from which she suffers; however, Dr. MacDonald proclaimed that he “does not believe in” removal of the tonsils by surgery. As a result, Ms. Scott’s requests to be seen by an outside ENT specialist have been summarily rejected.
96. Ms. Scott is also afflicted by a recurring back problem, which she experiences when misaligned bones in her back rub against her spine. She is essentially rendered immobile when the condition flares up.
97. Despite clear documentation in Ms. Scott’s medical records reflecting that she is asthmatic, Dr. Remaly prescribed Mobic (Meloxicam), a nonsteroidal anti-inflammatory drug which is contra-indicated for individuals with asthma, as the medical treatment for her back. Even after Ms. Scott had an adverse reaction upon her initial use of Mobic, Dr. Remaly declined to change the prescription. Only as a result of the intervention of a nurse practitioner on staff at FCCW was Ms. Scott taken off Mobic and prescribed Prednisone for her injured back.
98. Ms. Scott has repeatedly requested a regimen of physical therapy to address her back issues; all such requests have been disregarded.
99. Ms. Scott has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to her serious medical problems and needs.
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C. FCCW’s Systemic Failure To Provide Constitutionally-Adequate Medical Care
100. The named plaintiffs incorporate by reference, as though fully restated herein, the allegations set forth in Paragraphs 1 through 99 above.
101. The experiences reflected by and embodied in the named plaintiffs’ respective individual allegations provide only a partial indication of the systemic, pervasive nature of the deficiencies characterizing FCCW’s provision of and/or failure to provide medical care services to the women prisoners residing there. Given FCCW’s status as the facility, within the VDOC system, to which women prisoners with the most serious medical problems are sent for a purportedly heightened level of care, the critical implications of the systemic deficiencies characterizing the provision of medical care at FCCW are both apparent and disturbing.
102. The pervasive shortcomings in FCCW’s provision of medical care to its residents can be broadly viewed as attributable to two principal considerations: (i) deviations from the accepted and appropriate standard of care on the basis of cost considerations driven by Armor’s motivation to minimize its expenses and thereby maximize its corporate profits; and (ii) deviations from the accepted and appropriate standard of care on the basis of purported security concerns devoid of any genuine and legitimate penological justification. Neither of these considerations can validate or justify defendants’ past, present and on-going acts and omissions constituting and/or reflecting deliberate indifference to plaintiffs’ serious medical problems and needs.
103. Under the provisions of VDOC Operating Procedure No. 866.1, “Offender Grievance Procedure,” defendant Schilling, as Regional Ombudsman, is the individual to whom grievances initiated by prisoners residing at Fluvanna with respect to failure to provide medical care or provision of deficient medical care are or at relevant times were directed for ultimate
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review and disposition when such grievances have not been resolved to the satisfaction of the prisoner at earlier stages in the grievance process. As a result, Mr. Schilling has or, in contravention of relevant policy and sound correctional practice, has purposefully avoided, direct personal knowledge of the substance of prisoner grievances describing the pervasive nature of the deficient medical care to which the named plaintiffs and other prisoners similarly situated have been subjected at FCCW, as set forth in this Complaint.
104. Under the provisions of VDOC Op. Proc. No. 866-1, defendant Baskerville, as FCCW Warden, reviews and determines prisoner grievances with respect to failure to provide medical care or provision of deficient medical care in those instances in which a prisoner’s complaint regarding the nature or extent of medical care she has (or has not) received is not resolved to the prisoner’s satisfaction on an informal basis. As a result, Ms. Baskerville has or, in contravention of relevant policy and sound correctional practice, has purposefully avoided, direct personal knowledge of the substance of prisoner grievances describing the pervasive nature of the deficient medical care to which the named plaintiffs and other prisoners similarly situated have been subjected at FCCW, as set forth in this Complaint.
105. As a result of its officials’ and employees’ direct participation in and awareness of the review process involving FCCW prisoners’ hundreds of grievances recounting FCCW’s systemic provision of deficient medical care and/or outright failure to provide appropriate medical care, without requiring FCCW and Armor and/or PHS to adopt and implement corrective measures, VDOC has adopted and engaged in a custom or practice of deliberate indifference to plaintiffs’ serious medical problems and needs.
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1. Deviations From The Appropriate Standard Of Care Based On Cost Considerations (a) Deficient Sick Call Process
106. Upon information and belief, Armor maintains lower operating expenses, and thus increases its profits under its contract with VDOC, by retaining and employing licensed practical nurses (LPNs) and certified nursing assistants (CNAs) -- rather than physicians or registered nurses -- to make critical medical judgments. LPNs and CNAs administer the Sick Call process and make threshold determinations as to whether prisoners complaining of medical problems should be referred to a doctor for examination and treatment. The lack of training, expertise and experience that is characteristic of these lower-cost paraprofessionals creates a Sick Call process in which determinations regarding prisoners’ serious (or potentially serious) medical problems and needs are made by individuals unqualified to perform this function, with severe consequences for those prisoners subject to incorrect judgments.
107. The plight of plaintiffs Cynthia Scott and Patricia Knight illustrate the serious implications for FCCW prisoners of a Sick Call process administered by under-qualified individuals employed on the basis of considerations of expense reduction and profit maximization rather than fundamental medical competency. Ms. Scott was seen at Sick Call for many months during which she suffered from breathing difficulties, catastrophic weight loss for which there was no explanation, and a protein deficiency in regard to which no modification of her diet was implemented before she was finally referred for testing that revealed she is afflicted with sarcoidosis, a serious, potentially life-threatening disease. Ms. Knight suffered through a repeated, fruitless series of Sick Call visits spanning six months before she was finally referred to a doctor concerning her severe, chronic neck pain. That doctor, upon finally examining
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Ms. Knight, immediately acknowledged her need for specialized treatment, resulting in belated spinal disk-removal surgery.
108. Cynthia Scott revisited the potentially life-threatening consequences of the woefully inadequate Sick Call process more recently in connection with the blood clot causing severe swelling and extreme pain in her lower left leg, in connection with which she had Sick Call visits from January to May 2012 before her circumstances became so dire that an ultrasound revealing the presence of the clot was finally ordered and conducted. Likewise, Marguerite Richardson’s MRSA was dismissed as insignificant, or actively concealed, for months by those staffing Sick Call, before she was finally informed that she was afflicted with this highlycontagious bacterial infection and began to receive proper treatment.
109. Defendants’ failure, or refusal, to expend the resources required to provide a Sick Call process that is staffed by properly trained and experienced medical personnel competent to adequately and properly assess the nature and extent of FCCW prisoners’ actual or potentially serious medical problems and refer them accordingly for appropriate attention and treatment constitutes deliberate indifference to serious medical needs.
(b) Failure/Refusal To Acknowledge, Examine, Diagnose And Treat Serious Or Potentially Serious Prisoner Medical Problems
110. Upon information and belief, under the provisions of the contract between Armor and VDOC, the greater the amount of time and attention that Armor devotes to the medical needs of a particular prisoner, the greater the resulting expense, thus adversely affecting Armor’s profits.
111. As a result, prisoners residing at FCCW have repeatedly been subjected to situations in which FCCW Medical Staff have failed, or refused, to invest the time or effort
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required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns.
112. The circumstances of plaintiffs Marguerite Richardson and Cynthia Scott are illustrative. Ms. Richardson, who has a bulging mass underneath her right ribcage, which causes her severe pain and discomfort, has tried for months to persuade FCCW Medical Staff to perform tests, determine a diagnosis and prescribe treatment for this growth, all to no avail. She still awaits an appropriate examination, diagnosis and treatment. Similarly, despite repeated complaints over a period of more than nine months during which she suffered chest pains, shortness of breath, night sweats and catastrophic weight loss, FCCW Medical Staff offered Ms. Scott nothing but a diagnosis of “protein deficiency” in her diet (in regard to which no corrective action was taken) and an assessment that she was experiencing “early-stage menopause”. Only in June 2010 was Ms. Scott finally provided with chest x-rays that ultimately led to further testing and a diagnosis of sarcoidosis -- a serious, potentially life-threatening disease. Subsequent to this diagnosis, FCCW Medical Staff have steadfastly refused to inform Ms. Scott regarding the long-term implications of the disease from which she suffers.
113. Defendants’ failure, or refusal, to acknowledge, examine, diagnose and treat the serious, or potentially serious, medical problems of FCCW prisoners in an appropriate and timely manner, as reflected by the experiences of Ms. Richardson and Ms. Scott, constitutes deliberate indifference to serious medical needs.
(c) Failure/Refusal To Refer Prisoners For Needed Specialized Care
114. Upon information and belief, under the provisions of the contract between Armor and VDOC, each referral of an FCCW prisoner to UVA or other outside medical facilities for specialized evaluation or care increases the operating expenses for which Armor is responsible
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and thus decreases its profits. As a result, FCCW prisoners have repeatedly been subjected to situations in which FCCW Medical Staff has failed, or refused, to make such referrals, despite the prisoners’ clearly apparent and often previously documented need for specialized care.
115. The circumstances of plaintiffs Bobinette Fearce and Rebecca Scott are illustrative. The progression of Ms. Fearce’s degenerative spine disease, and its possible adverse effects upon her overall health and well-being, have not been measured or assessed by the specialists at UVA who previously treated her since March 2008. FCCW Medical Staff’s steadfast refusal to send Ms. Fearce back to UVA despite the acknowledged nature of her condition and her repeated requests causes her to suffer extreme, on-going pain. Likewise, the refusal of FCCW Medical Staff to refer Rebecca Scott to an outside ENT specialist despite clear acknowledgement by Dr. Remaly of her need for a tonsillectomy in order to prevent the recurring throat infections that adversely affect her already-diminished hearing has no possible legitimate medical justification.
116. Defendants’ failure, or refusal, in the face of a recognized need, to refer FCCW prisoners for specialized medical care at outside facilities constitutes deliberate indifference to serious medical needs.
(d) Failure/Refusal To Carry Out Specialists’ Prescribed Courses Of Treatment
117. Upon information and belief, under the provisions of the contract between Armor and VDOC, the greater the expense absorbed by Armor in regard to carrying out the courses of treatment prescribed by outside specialists in order to address the illnesses of FCCW prisoners that they have examined and diagnosed, the greater the adverse impact upon Armor’s profits.
118. As a result, FCCW Medical Staff routinely disregards the courses of treatment prescribed for prisoners by outside specialists who have examined them, in favor of treatment
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that is less expensive, but also less efficacious, in responding to the serious medical conditions and severe pain from which the prisoners suffer.
119. The circumstances of plaintiff Bobinette Fearce are illustrative. As described more fully above, Ms. Fearce suffers from severe chronic pain in her wrists, which, as a result of a CT-scan taken in March 2008 by UVA specialists, was diagnosed as attributable to “moderately severe right and mild left” carpel tunnel syndrome. The specialists concluded that if the wrist splints they prescribed for Ms. Fearce proved ineffective to treat the condition, carpel tunnel release, a surgical procedure, should be employed.
120. However, when wrist splints failed to address or remedy Ms. Fearce’s severe, chronic wrist pain, FCCW Medical Staff, rather than refer Ms. Fearce back to UVA for the carpel tunnel release surgery that had already been prescribed, unilaterally initiated an alternative course of treatment, involving the administration of steroid injections. The injections of Prednisone and hydrocortisone have been ineffective to remedy Ms. Fearce’s severe, on-going wrist pain. FCCW Medical Staff, notified by Ms. Fearce that the alternative (and significantly cheaper) course of treatment upon which they settled was not working, has taken no further action to address, much less resolve, Ms. Fearce’s chronic wrist pain.
121. The circumstances of plaintiff Cynthia Scott are likewise illustrative. As reviewed above, Ms. Scott’s UVA oncologists prescribed 40 mgs. per day of Prednisone for 30 days, followed by a reduced dosage of 20 mgs. per day for 60 days, in order to treat her sarcoidosis, in August 2010. However, immediately upon her return to FCCW, Dr. MacDonald unilaterally reduced the prescribed course of medication to 30 mgs. of Prednisone (rather than 40 mgs.) for 30 days, followed by 20 mgs. per day for 40 days (rather than 60 days). As a result, long before Cynthia Scott’s scheduled follow-up appointment with her specialists in mid-
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December 2010, she ran out of the medication that had been prescribed by specialists for her treatment and was deprived of the beneficial effects on her condition that her specialists determined would result from the course of treatment they prescribed but FCCW repudiated. Likewise, Dr. MacDonald unilaterally reduced the dosage of anti-coagulant medication Ms. Scott was prescribed to receive following the discovery that she had a blood clot in her leg, fragments of which broke off and migrated to her lungs – posing a threat to her continued well-being.
122. Defendants’ failure, or refusal, in the face of specific instructions provided by outside medical specialists, to carry out the courses of treatment prescribed for plaintiffs and other similarly-situated FCCW prisoners, constitutes deliberate indifference to serious medical needs.
(e) Failure/Refusal To Provide Prisoners With Effective Medication For Severe, Chronic Pain
123. Upon information and belief, under the provisions of the contract between Armor and VDOC, the greater the expense absorbed by Armor in providing FCCW prisoners experiencing severe, chronic pain attributable to their serious health problems with effective pain medication in adequate amounts to relieve the prisoners’ suffering, the greater the adverse impact upon Armor’s profits.
124. As a result, FCCW Medical Staff, as a matter of routine, intentionally withholds from FCCW prisoners’ pain medication of a nature and extent sufficient to provide the prisoners with relief from the severe, chronic pain they are experiencing.
125. The circumstances of plaintiffs Bobinette Fearce and Patricia Knight, respectively, are illustrative. Although, as described more fully above, Ms. Fearce suffers from a host of chronic conditions, including but not limited to, degenerative disc disease affecting her spine and carpal tunnel syndrome in both of her wrists, Dr. MacDonald has repeatedly refused to
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increase Ms. Fearce’s dosage of pain medication or to provide her with more effective alternative pain medication and has, instead, essentially instructed Ms. Fearce to fend for herself by suggesting that she can supplement her pain treatments by purchasing over-the-counter Tylenol from FCCW Commissary at her own expense. Similarly, FCCW Medical Staff has repeatedly refused to provide Ms. Knight with anything more than over-the-counter Tylenol for her chronic and severe knee, back and neck pain attributable to degenerative disc disease and arthritis.
126. Defendants’ failure, or refusal, in the face of recognized suffering and need, to provide plaintiffs and other similarly-situated FCCW prisoners with pain medication sufficient in nature and extent to relieve the prisoners severe, chronic pain constitutes deliberate indifference to serious medical needs.
2. Deviations From The Appropriate Standard Of Care Based Upon Non-Medical “Security” Considerations
127. In recognition of the particular circumstances and needs encountered by plaintiffs and other similarly-situated FCCW prisoners as a result of the medical conditions from which they suffer, FCCW Medical Staff has occasionally issued Medical Profiles allowing certain special accommodations to these prisoners. However, the Medical Profiles have been arbitrarily revoked on the basis of purported “security” considerations raised by FCCW Correctional Staff, which lack either a medical or a legitimate penological justification.
128. As a result, plaintiffs and other similarly-situated FCCW prisoners have been arbitrarily deprived of the marginally greater degree of personal comfort, dignity and relief from pain, embarrassment and humiliation that were afforded by the accommodations established by their Medical Profiles.
129. The circumstances of plaintiffs Bobinette Fearce and Marguerite Richardson, respectively, are illustrative. Although, as described more fully above, Ms. Fearce suffers from a
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chronic incontinence condition in regard to which FCCW Medical Staff has refused to consider allowing her to have corrective surgery, Ms. Fearce was, temporarily, issued a Medical Profile that established her entitlement to use the bathroom and the laundry facilities on an as-needed basis in recognition of her condition. However, despite the lack of any change in Ms. Fearce’s condition, or her resulting physical and hygienic needs, Dr. MacDonald summarily rescinded the Medical Profile solely because FCCW Correctional Staff asked him to do so. Ms. Fearce’s Medical Profile for transfer to a single cell in Building 2, which was issued in recognition of her serious mobility limitations, was revoked under similar circumstances, without any medical or penological justification. Ms. Richardson, whose medication required for treatment of her high blood pressure and poor circulation causes her to experience a constant need for access to a bathroom, was denied a Medical Profile granting her bathroom privileges on an as-needed basis by FCCW Medical Staff on the grounds that FCCW Correctional Staff would not recognize or honor such a Profile even if one were provided.
130. Defendants’ failure, or refusal, to grant and/or maintain special accommodations dictated by prisoners’ needs specifically attributable to their medical conditions on the basis of arbitrary “security” considerations having neither a medical nor a legitimate penological justification constitutes deliberate indifference to serious medical needs.
3. Unnecessary And Preventable Fatalities Attributable To FCCW’s Systemic Failure To Provide Constitutionally-Adequate Medical Care Have Already Occurred And Will Continue To Occur
131. Upon information and belief, the systemic practices and procedures adopted and implemented by PHS, and subsequently Armor have resulted in deaths which provision of appropriate medical care could and should have prevented. Such practices and procedures embody and reflect deliberate indifference to the serious medical needs of prisoners residing at
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FCCW and continue to pose an increased and undue risk of premature death to the named plaintiffs and the members of the class they seek to represent.
132. One such instance of unnecessary and preventable death involves the case of Darlene White, a 47-year old African-American woman and a long-time FCCW prisoner, who died in the Infirmary in the early morning hours of December 21, 2011.
133. Upon information and belief, sometime during the afternoon of December 20, 2011, Ms. White, an acknowledged diabetic, entered the Infirmary, complaining of a severe headache, nausea and diarrhea. Upon information and belief, after Ms. White experienced a wave of nausea and vomited near the control “bubble” in the Infirmary, a nurse gave her a shot of medication intended to relieve the nausea and sent Ms. White back to her housing unit.
134. Upon information and belief, in the early evening of the same day, Ms. White returned to the Infirmary, again complaining of severe headache and nausea. She was seated in a chair, inside the “F-Ward” segment of the Infirmary, rocking back and forth, holding her head and moaning in pain. A nurse checked Ms. White’s blood sugar and found that it was radically elevated above normal levels.
135. Upon the nurse’s instruction, Ms. White laid down on a bed in Room 2-F, continuing to hold her head, rocking and moaning in severe pain. A short time later, Ms. White requested help from another prisoner in the room, indicating that she was sick and in great pain. As the other prisoner was leaving the room to call for help, Ms. White again began vomiting. A short while later, a nurse entered the room and asked Ms. White a series of questions, none of which she answered. Ms. White did, however, say that she had defecated on herself and needed to be changed. The nurse indicated that she would get someone to clean up Ms. White’s vomit and change her, and left the room. The nurse returned some time later and spread a paper gown
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over the place on the floor where Ms. White had vomited. The nurse also placed a paper cup and a bedpan on the bed where Ms. White was laying, instructing Ms. White to use the cup and the bedpan if she needed to urinate or had diarrhea. Although Ms. White was barely conscious by this time, the nurse stated that she wanted to measure Ms. White’s fluid intake. However, the nurse never checked Ms. White’s vital signs, or examined or otherwise touched Ms. White in any way.
136. Upon information and belief, sometime later a different nurse entered Room 2-J and set about inserting an IV intake terminal into Ms. White’s arm. The nurse spoke to Ms. White, asked her questions, and requested Ms. White’s cooperation with respect to insertion of the IV, but Ms. White was completely non-responsive. The nurse stated that she intended to give Ms. White some IV fluids to make her feel better, but Ms. White did not react or respond. The other prisoner in the room reported that Ms. White needed to be changed, and the nurse responded “Oh. O.K.” She left the room thereafter and no one came back to clean up or change Ms. White, or to check on her condition despite her obvious non-responsiveness.
137. At about 3:15 a.m. on December 21, the other prisoner located in Room 2-J heard a ratting sound emanating from Ms. White’s throat and pushed the emergency button and told the nearby guard that Ms. White needed immediate attention. A nurse rushed into the room, yelling at Ms. White to elicit a response, but none was forthcoming. The nurse ran into the hallway and called a “Code Blue”. Although the nurses converging on the room thereafter discussed the performance of CPR, none was performed and no vital signs were measured.
138. At about 3:45 a.m., a guard instructed one of the nurses to call an ambulance. However, when the emergency response team arrived on the scene, they stayed for only a few
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minutes and took no action, as it was apparent that Ms. White was deceased and that no emergency existed.
139. Dr. MacDonald later entered the ward to which the prisoners who had been present in the room with Ms. White had been moved. He informed them that Infirmary personnel were “investigating” to make sure that no one on staff had caused Ms. White any harm, and stated that “we want to make sure that none of you are mistreated when you come here for medical care. I know that you get very good medical care here. Believe me, you do get good care.”
140. Upon information and belief, another case of unnecessary and eminently preventable death involved a prisoner named Jeanna Wright.
141. Upon information and belief, Ms. Wright complained of severe abdominal pain, accompanied by regular, sometimes daily, vaginal or rectal bleeding, for at least one year. Ms. Wright requested, paid for, and attended numerous Sick Call visits regarding her symptoms, but FCCW Medical Staff routinely assured here that she was “fine”.
142. Finally, earlier this year, Ms. Wright was seen by a doctor and referred to UVA for further examination and diagnostic testing, upon which it was discovered that she was suffering from Stage IV abdominal cancer. Ms. Wright was held over at UVA for several weeks, during which time such treatment as could be provided, given her condition, was rendered.
143. Ms. Wright returned to FCCW, and was admitted to the Infirmary, on or about April 12, 2012. She passed away two days later.
144. The fate encountered by prisoners Darlene White and Jeanna Wright, a described herein, almost certainly awaits additional FCCW prisoners if corrective action is not undertaken
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promptly to remedy the clear deficiencies in the nature and the extent of the medical care the facility provides.
145. Absent immediate corrective action, FCCW will continue to subject the named plaintiffs and the members of the class they seek to represent to further undue pain and suffering and the possibility of premature death in deliberate indifference to these prisoners’ serious medical needs.
CLASS ACTION ALLEGATIONS 146. The named plaintiffs bring this action for themselves individually and on behalf of all others similarly situated, pursuant to the Eighth Amendment to the United States Constitution and 42 U.S.C. § 1983. 147. The named plaintiffs seek to represent a class consisting of all prisoners who currently reside or will reside in the future at FCCW and who have sought, currently seek or will seek medical care while residing at FCCW. They seek certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure in order to represent a class of persons requesting declaratory and injunctive relief to terminate the ongoing course of conduct on the part of the defendants that is depriving the named plaintiffs and the class members of their constitutional rights to adequate medical care, and to enjoin the policies and practices adopted and implemented by the defendants that result in the deprivation of those rights. 148. Approximately 1,200 women are incarcerated at FCCW on a day-to-day basis. The proposed class is, accordingly, so numerous that the joinder of all class members is impracticable. 149. All FCCW prisoners comprising the proposed class are equally subject to the actual or potential adverse impacts on their physical health and mental and emotional well-being resulting from the long-standing and on-going pattern and practice of systemic unconstitutional
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acts and omissions on the part of the defendants described in this Complaint. Thus, common questions of law and fact exist as to all class members. Those common questions include, but are not necessarily limited to: (i) whether defendants systematically provide inadequate medical care to the prisoners residing at FCCW; (ii) whether defendants’ acts and/or omissions in the provision of or failure to provide medical care at FCCW reflect deliberate indifference to the serious medical needs of the prisoners residing at FCCW; (iii) whether defendants’ provision of inadequate medical care on a systemic basis has placed the prisoners residing at FCCW at an unreasonable risk of suffering new or worsening physical injury, illness, mental anguish, emotional distress and the prospect of premature death; and (iv) whether defendants have violated the rights of the prisoners residing at FCCW to be free from cruel and unusual punishment as proscribed by the Eight Amendment?
150. The named plaintiffs’ claims are typical of the claims of the proposed class as a whole. The named plaintiffs are individual prisoners at FCCW suffering from an array of serious medical problems and reflecting a range of serious health care needs that are typical of prisoner populations in general and the prisoner population at FCCW in particular. The named plaintiffs and the proposed class they seek to represent have suffered direct injuries, and will continue to be directly injured, due to the defendants’ unlawful and unconstitutional pattern and practice of providing inadequate medical care at FCCW.
151. The named plaintiffs will fairly and adequately represent the interests of the proposed class. They have no interests separate from or in conflict with those of the class as a whole and seek no relief other than the declaratory and injunctive relief which is sought on behalf of the entire class. The named plaintiffs are represented by competent legal counsel with substantial experience in complex civil rights litigation matters, including class actions.
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152. The defendants have acted, or failed and/or refused to act, on grounds that apply generally to the proposed class, such that final injunctive and declaratory relief is appropriate with respect to the class as a whole.
CLAIM FOR RELIEF (Declaratory And Injunctive Relief Pursuant To The Eighth Amendment to the U.S.
Constitution and 42 U.S.C. § 1983) 153. The named plaintiffs incorporate by reference, as though fully restated herein, the allegations set forth in Paragraphs 19 through 152 above. 154. Defendants’ deliberate indifference to the named plaintiffs’ serious medical needs causes unavoidable physical pain and suffering, mental anguish, emotional distress, the deterioration of their health and an undue risk of premature death which, for some women at FCCW has, upon information and belief, already occurred. 155. Defendants’ policies, practices, acts and/or omissions constitute and reflect deliberate indifference to the serious medical and health care needs of the prisoners residing at FCCW and violate the Cruel and Unusual Punishment Clause of the United States Constitution, which is applicable to the Commonwealth of Virginia and those acting on its behalf under color or state law pursuant to the Fourteenth Amendment to the Constitution. 156. Defendants’ policies, practices, acts and/or omissions have placed or will place the named plaintiffs and the members of the proposed class they seek to represent at an unreasonable risk of suffering new or worsening serious medical illnesses, injuries and harm. 157. As a proximate cause of defendants’ unconstitutional policies, practices, acts and/or omissions in regard to the provision of inadequate medical care at FCCW, the named plaintiffs and others similarly situated have suffered, are currently suffering and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury and the substantially increased risk of premature death. No adequate, readily available and
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complete remedy at law exists to address defendants’ wrongful conduct as described herein. The declaratory and injunctive relief sought herein is necessary to prevent new, on-going and future injury.
PRAYER FOR RELIEF WHEREFORE, the named plaintiffs respectfully pray that this Court: a. Issue an order certifying this action to proceed as a class action pursuant to
Fed. R. Civ. P. 23(a) and 23(b)(2). b. Approve the undersigned to serve as class counsel pursuant to Fed. R. Civ.
P. 23(a)(4) and 23(g). c. Issue a judgment declaring that defendants’ policies, practices, acts and/or
omissions as described herein are unlawful and violate plaintiffs’ rights under the Constitution and laws of the United States; d. Preliminarily and permanently enjoin defendants, their subordinates, agents, employees, representatives and all others acting or purporting to act in concert with them or on their behalf from subjecting plaintiffs to the unlawful and unconstitutional treatment described herein, and issue such injunctive orders as are necessary and/or appropriate to preclude such conduct on an ongoing basis; e. Maintain ongoing supervisory jurisdiction of this matter in order to monitor and enforce the defendants’ full and continuing compliance with the injunctive relief ordered herein; f. Award plaintiffs their reasonable attorneys’ fees and litigation costs pursuant to 42 U.S.C. § 1988 and other applicable law; and g. Grant all such other and further relief as this Court may deem necessary and/or appropriate in the interests of justice.
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DATED: July 24, 2012

Respectfully submitted, CYNTHIA SCOTT, et. al. By Counsel

/s/ Brenda E. Castañeda

OF COUNSEL:

Alex R. Gulotta, VSB No. 37097

Theodore A. Howard

Executive Director (alex@justice4all.org)

WILEY REIN LLP

Brenda E. Castañeda, VSB No. 72809

1776 K Street, N.W.

Staff Attorney

Washington, D.C. 20006

(brenda@justice4all.org)

(202) 719-7000

Abigail Turner, VSB No. 74437

Litigation Director

Philip Fornaci*

(abigail@justice4all.org)

Deborah Golden*

LEGAL AID JUSTICE CENTER

Ivy Finkenstadt*

1000 Preston Avenue, Suite A

D.C. PRISONERS’ PROJECT OF

Charlottesville, VA 22903

THE WASHINGTON LAWYERS’

(434) 977-0553

COMMITTEE FOR CIVIL RIGHTS AND

URBAN AFFAIRS

11 Dupont Circle, N.W.

Suite 400

Washington, D.C. 20036

(202) 319-1000

Attorneys for Plaintiffs



Motions for Pro Hac Vice Admission will be filed in accordance with W.D. Va. Civ.

R. 6(d).

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

Plaintiffs, all of whom are prisoners residing at Fluvanna Correctional Center for Women (“FCCW”), have filed an action pursuant to 42 U.S.C. § 1983 alleging that Defendants violated Plaintiffs’ constitutional rights under the Eighth Amendment to be free from cruel and unusual punishment. Plaintiffs assert that FCCW fails to provide constitutionally adequate medical care and that Defendants are deliberately indifferent to this failure. Seeking “to represent a class consisting of all prisoners who currently reside or will reside in the future at FCCW and who have sought, currently seek[,] or will seek medical care while residing at FCCW,” Plaintiffs request a declaratory judgment and preliminary and permanent injunctions ordering FCCW to provide adequate medical care to Plaintiffs and all other similarly situated women residing at FCCW.
FCCW is a facility of the Commonwealth of Virginia Department of Corrections (the “VDOC”), and most of the named individual Defendants are VDOC employees who are being sued in their official capacities,1 which is essentially “‘another way of pleading an action against
1 The official capacity Defendants are Harold W. Clarke, the Director of the Virginia Department of Corrections (the “VDOC”); David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling,
(continued...)

an entity of which an officer is an agent.’ As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978)); see also Huggins v. Prince George’s Cnty., Md., 683 F.3d 525, 532 (4th Cir. 2012). Thus, the complaint pleads an action against the VDOC, and I will treat the VDOC and the official capacity defendants interchangeably. See Huggins, 683 F.3d at 532 n. 3.
The VDOC Defendants have moved to dismiss pursuant to Rule 12(b)(6), arguing the following: that they have not been personally involved in denying adequate medical care and cannot be held liable on a respondeat superior theory; that they have not tacitly authorized or been deliberately indifferent to the healthcare provider’s alleged misconduct; and that the case cannot proceed as a class action as a matter of law. However, each argument fails, and I will deny the motion to dismiss. As explained further herein, the claims against the VDOC Defendants are not premised on a theory of respondeat superior; rather, the complaint alleges that the VDOC Defendants have a non-delegable duty to provide constitutionally adequate medical care, and that the VDOC Defendants are directly liable, not vicariously liable, for the VDOC’s policy and practice of providing insufficient health care. The complaint lays out thoroughgoing allegations that the VDOC Defendants were (and are) directly on notice of systemic and pervasive problems regarding the provision of medical care at FCCW, but have
1(...continued) VDOC’s Director of Health Services; and Phyllis A. Baskerville, the Warden at Fluvanna Correctional Center for Women (“FCCW”). Armor Correctional Health Services, Inc. (“Armor”) and “John/Jane Doe, M.D., Acting Medical Director, Fluvanna Correctional Center for Women” are also named as Defendants in this case, but they are not parties to the instant motion.
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failed to take any action. As for the argument against class certification, Plaintiffs have not yet even filed a motion to certify a class, and the VDOC’s request that I deny certification is premature.
I. When considering a motion to dismiss for failure to state a claim upon which relief can be granted, I apply the pleading standard refined by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See also Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P. 8. The non-moving party must have alleged facts that “state a claim to relief that is plausible on its face,” i.e., facts that “have nudged their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. A claim is plausible if the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and if there is “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “Iqbal and Twombly do not require a plaintiff to prove his case in the complaint,”Robertson v. Sea Pines Real Estate Companies, Inc., 679 F.3d 278, 291 (4th Cir. 2012), as the following long-held rule still stands: “in evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the [non-moving party] in weighing the legal sufficiency of the complaint,” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). See also Robertson, 679 F.3d at 284; E.I. duPont de Nemours & Co. v. Kolon Industries, Inc., 637 F.3d 435, 440 (4th Cir. 2011).
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II. A. Plaintiffs have adequately alleged the elements of viable claims under the Eighth Amendment, which requires that Plaintiffs allege “deliberate indifference” to a “sufficiently serious” deprivation of their Eighth Amendment rights. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted); see also Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (“An inmate’s Eighth Amendment claim involves a subjective component and an objective component. ‘Specifically, Eighth Amendment analysis necessitates inquiry as to whether the prison official acted with a sufficiently culpable state of mind (subjective component) and whether the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component).’”) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842. Regarding the inquiry whether Plaintiffs have alleged a “sufficiently serious” deprivation of their Eighth Amendment rights, Plaintiffs have alleged Defendants’ “deliberate indifference” to “serious” medical conditions and, significantly, Defendants’ motion to dismiss raises no challenge to Plaintiffs’ allegations regarding the seriousness of the medical conditions. A “‘serious . . . medical need’ is one ‘that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Iko, 535 F.3d at 241 (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)). Plaintiffs have alleged, inter alia, the following diagnosed medical issues -4-

and problems obviously necessitating a doctor’s care: sarcoidosis, a potentially life-threatening disease involving cellular inflammation; pulmonary embolism, a potentially life-threatening blockage of the main artery of the lung or one of its branches; degenerative cervical spine and disc disease; chronic pain; carpal tunnel syndrome; incontinence; temporomandibular joint disorder, which has caused a misaligned jaw; methicillin-resistant Staphylococcus aureus (“MRSA,” also called multidrug-resistant Staphylococcus aureus), a highly contagious bacterial infection; and profound deafness aggravated by recurring tonsillitis. Plaintiffs have met their burden to allege “sufficiently serious” deprivations of their Eighth Amendment right to constitutionally adequate medical care. Any further determination whether Plaintiffs’ medical needs are objectively “sufficiently serious” is an argument on the merits that is not properly considered or resolved at the Rule 12(b)(6) stage.
Plaintiffs have also adequately alleged “deliberate indifference to a prisoner’s serious illness or injury” to support a cause of action under § 1983, as contemplated by Estelle v. Gamble, 429 U.S. 97, 105 (1976). Such deliberate indifference may be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05. For a prison official to exhibit deliberate indifference, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837 (emphasis added). And, as I have already observed, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842.
B. Plaintiffs’ allegations amply support a reasonable inference of Defendants’ deliberate
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indifference to Plaintiffs’ serious medical needs. Claiming that the “sick call” and referral processes at FCCW are deficient, Plaintiffs allege that the “responsibility to determine whether a prisoner will be scheduled for an appointment with a doctor and what, if any, treatment short of a doctor’s appointment an ailing prisoner will receive” is “delegated” to licensed practical nurses (“LPNs” and certified nursing assistants (“CNAs”), rather than physicians or registered nurses, and that these LPNs and CNAs lack “the medical training and experience of physicians, certified physicians’ assistants[,] or registered nurses . . . .” “[D]eliberate indifference [can] occur[] when prison officials prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment,” and medical personnel serving as gatekeepers with respect to access to care also may be liable “if he delays or refuses to fulfill that gatekeeper role due to deliberate indifference.” Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000); see also Dawson v. Kendrick, 527 F. Supp. 1252, 1307 (S.D. W.Va. 1981) (initial screening upon incarceration by untrained staff indicated grossly deficient medical care).
Plaintiffs allege that, as a result of cost-saving concerns, medical personnel at FCCW “have failed, or refused, to invest the time or effort required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns.” Indeed, the complaint is replete with specific examples of how Plaintiffs have been adversely affected as a result of this concern. A delay in providing medical treatment in the face of observable symptoms may give rise to an inference of deliberate interference. See, e.g., Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990) (alleged lack of follow-up after known and ongoing complaints of cardiac-related symptoms could allow finding of deliberate indifference); Sosebee v. Murphy, 797 F.2d 719, 181-82 (4th Cir. 1986) (deliberate indifference an issue of material fact where treatment of allegedly obvious symptoms was delayed); Tillery v. Owens, 719 F. Supp.
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1256, 1308 (W.D. Pa. 1989) (court will defer to informed judgment on appropriate medical treatment, but “if an informed judgment has not been made, the court may find that an eighth amendment claim has been stated”) (citing Supre v. Richetts, 792 F.2d 958, 963 (10th Cir. 1986)). Even a “significant delay in treating a medical condition which is not life-threatening can state an Eighth Amendment claim.” Wilkins v. Corr. Med. Sys., 928 F.2d 400 (Table), 1991 WL 34999, at *3 (4th Cir. Mar. 19, 1991) (unpublished) (collecting cases) (emphasis added).
Plaintiffs allege that medical personnel at FCCW have failed, or refused, to make referrals to specialists despite prisoners’ apparent and often previously documented need for specialized care. These allegations, taken as true, satisfy Plaintiffs’ burden to allege facts giving rise to a reasonable inference of deliberate indifference. See, e.g., Hayes v. Snyder, 546 F.3d 516, 526 (7th Cir. 2008) (refusal to refer prisoner to specialist when generalist was unable to identify cause of severe, worsening pain could support finding of deliberate indifference); Greeno v. Daley, 414 F.3d 645, 654-55 (7th Cir. 2005) (jury could find deliberate indifference based on two-year delay in referring prisoner to specialist or authorizing endoscopy despite prisoner’s deteriorating medical condition); McElligot v. Foley, 182 F.3d 1248, 1256-57 (11th Cir. 1999) (“deliberate indifference may be established . . . by a decision to take an easier but less efficacious course of treatment”) (citations omitted); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704-05 (11th Cir. 1985) (refusal to refer prisoner to specialists absent court orders, despite recognized need for treatment, was deliberate indifference).
Plaintiffs allege that FCCW inmates may stand in the “Pill Line” for an hour or more, often under harsh conditions, only to receive an incorrect prescription or to be told that their medicine has been forgotten, or not ordered, or is otherwise unavailable. In addition, the complaint alleges that FCCW doctors have altered the courses of medicine prescribed by U.Va.
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specialists to one of the Plaintiffs for sarcoidosis and blood clots; have limited or denied physical therapy prescribed for two of the Plaintiffs; have ignored a specialist’s suggestion for surgery to address one Plaintiff’s carpal tunnel syndrome, even though lesser remedies proved ineffective; denied a surgery prescribed by a specialist for one Plaintiff’s chronic bladder problem because she was deemed “too old”; denied a Plaintiff braces and oral surgery needed to permanently correct a temporomandibular joint disorder, which will cause indefinite damage if left untreated; and rejected a specialist’s order that a Plaintiff resume medication to treat chronic chest pain. Similar allegations of prison doctors’ denial of experts’ recommended treatment have been found sufficient to allege Eighth Amendment violations. See, e.g., Estelle, 429 U.S. at 105 (deliberate indifference may be manifested by “intentionally interfering with the treatment once prescribed”); Gil v. Reed, 381 F.3d 649, 664 (7th Cir. 2004) (allegations that prison doctor prescribed medication that specialist warned against and canceled specialist’s prescriptions created material issue of fact with regard to doctor’s state of mind); Starbeck v. Linn Cnty. Jail, 871 F. Supp. 1129, 1146-47 (N.D. Iowa 1994) (allegation that recommended surgery was denied because state did not want to pay for associated costs created issue of material fact with respect to deliberate indifference); West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978) (reversing dismissal of complaint and concluding that it was question of fact whether denial of recommended post-operative care was due to deliberate indifference).
Plaintiffs have alleged that medical personnel at FCCW “intentionally withhold[]” pain medication sufficient to alleviate severe and chronic pain. These allegations alone may support a reasonable inference of deliberate indifference. See, e.g., Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003) (“We will no more tolerate prison officials’ deliberate indifference to the chronic pain of an inmate than we would a sentence that required the inmate to submit to such a pain.”);
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McElligott, 182 F.3d at 1257 (“[P]rison officials may violate the Eighth Amendment by failing
to treat an inmate’s pain.”). Indeed, the allegations of Defendants’ deliberate indifference to the
individual named Plaintiffs also suggest a systemic pattern of deficient medical care at FCCW,
which also provides a basis for a reasonable inference of deliberate indifference. See Bishop v.
Stoneman, 508 F.2d 1224, 1226 (2d Cir. 1974) (considering allegations of six “typical incidents”
and reversing district court order granting motion to dismiss).2
C.
Plaintiffs further allege that Defendants Schilling and Baskerville were and are responsible
for the review and disposition of “hundreds of grievances recounting FCCW’s systemic
provision of deficient medical care and/or outright failure to provide appropriate medical care,”
and that this role placed these defendants directly on notice of Defendant Armor’s pattern of
repeated failure to provide constitutionally adequate medical care over an extended period of
2 As the United States Court of Appeals for the Second Circuit explained in Bishop v. Stoneman,
a series of incidents closely related in time, within several months as these are, may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners. We hold that the cumulation of incidents alleged in the complaint entitled plaintiffs to a trial of the underlying allegation of deliberate indifference to their medical needs.
508 F.2d 1224, 1226 (2d Cir. 1974). Even a pattern of reckless or negligent conduct may establish deliberate indifference to serious medical needs. See DeGidio v. Pung, 920 F.2d 525, 532-33 (8th Cir. 1990). Courts nationwide are in accord. See Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1988) (“And while a single instance of medical care denied or delayed, viewed in isolation, may appear to be the product of mere negligence, repeated examples of such treatment bespeak a deliberate indifference by prison authorities to the agony engendered by haphazard and ill-conceived procedures.”); Newman v. Alabama, 503 F.2d 1320, 1332 (5th Cir. 1974) (“[T]he record is replete with countless examples of inmates who were subjected to incalculable discomfort and pain as a result of the lack of medical care or inadequacy in the treatment administered. These examples fortify the conclusion that deficiencies were not isolated and bespeak of callous indifference to the welfare of inmate-patients. Moreover, these examples also belie any suggestion that suffering resulted merely from legitimate discrepancies of opinion as to the proper treatment to be rendered.”); Dawson v. Kendrick, 527 F. Supp. 1252, 1307 (S.D. W.Va. 1981) (Estelle standard has “been applied to systemic deficiencies in the provision of medical care in prisons [and] systemic deficiencies manifested by insufficient or unqualified medical personnel, and inadequate medical facilities and procedures in a prison which make unnecessary suffering inevitable may constitute an unconstitutional deprivation”).
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time. The “[r]eceipt of letters by prison officials may be evidence of personal knowledge of unconstitutional conditions,” particularly where “the harm continues over a period of time.” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Thus, contrary to Defendants’ assertion, Plaintiffs do not claim that Defendants are liable based only on isolated “response[s] to a grievance or appeal.” Rather, the hundreds of grievances that Plaintiffs allege have been reviewed by Defendants Schilling and Baskerville could constitute “notification of a continuing problem which may have been within [the VDOC Defendants’] power to remedy.” Wright, 766 F.2d at 850; see also Motto v. Correctional Medical Services, Civil Action No. 5:06-cv-00163, 2007 WL 2897854, at *4 (S.D. W.Va. Sept. 27, 2007) (plaintiff’s allegations that prison officials were aware of his need for surgery through filing of grievance letters and that they were deliberately indifferent were sufficient to state §1983 claim). Thus, given that Plaintiffs have alleged that the VDOC Defendants remained inactive despite personal knowledge of information disclosing alleged ongoing deficiencies in medical care, Plaintiffs’ Eighth Amendment claim may proceed against them directly. See, e.g., Young v. Wexford Health Sources, Civil Action No. 1:10-cv-08220, 2012 WL 621358, at *5 (N.D. Ill. Feb. 14, 2012) (“Where, as here, Plaintiff informed correctional officials that he was being denied access to the health care unit, those officials may be liable under 42 U.S.C. § 1983 for their purported inaction.”) (citations omitted).
At the very least, Plaintiffs allege that the hundreds of medical grievances initiated by Plaintiffs and other FCCW residents informed Defendants Schilling and Baskerville of allegations of serious and repeated provision of deficient medical care on the part of Defendant Armor that should have caused them to investigate the underlying facts and circumstances. See Farmer, 511 U.S. at 843 n. 8 (“[A] prison official . . . would not escape liability if the evidence showed that he merely refused to verify the underlying facts that he strongly suspected to be
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true, or declined to confirm inferences of risk that he strongly suspected to exist . . . .”); see also Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995) (“Nevertheless, even under [the] subjective standard, a prison official cannot hide behind an excuse that he was unaware of a risk, no matter how obvious. . . . [A]n injury might be so obvious that the factfinder could conclude that the guard did know of it because he could not have failed to know it.”). Furthermore, as previously discussed, such a pattern of deficient care can constitute evidence of deliberate indifference. Accordingly, Plaintiffs’ factual allegations, taken as true, reasonably support the inference that Defendants Schilling and Baskerville were deliberately indifferent with respect to Plaintiffs’ serious medical problems.3
The complaint states a claim for deliberate indifference to serious medical needs for which the VDOC can be held directly liable, rather than vicariously liable, under § 1983. Plaintiffs have alleged facts sufficient to support a claim that the VDOC maintained an official policy or custom of constitutionally deficient medical care under Monell and its progeny. In particular, Plaintiffs allege that officials at the VDOC have remained deliberately indifferent to or have actively ratified systemic and pervasive violations of the constitutional rights of the women incarcerated at FCCW and that, as a consequence of this policy or custom of inaction, officials at VDOC tacitly authorized and enabled ongoing violations of Plaintiffs’ right to constitutionally-adequate medical care. A governmental entity and its officers sued in their
3 Additionally, Plaintiffs allege that one of the Plaintiffs “is being retaliated against for having attempted to raise legitimate concerns with respect to the nature and quality of her medical care . . . .” This allegation of retaliation, which necessarily involves the personal knowledge and involvement of Defendant Baskerville, itself gives rise to an inference of deliberate indifference. See, e.g., Speagle v. Ferguson, Civil Action No. 2:10-cv-02040, 2010 WL 3724784, at *7 (C.D. Ill. Aug. 20, 2010) (denying motion to dismiss claim for failure to provide adequate medical care and noting that allegation of denial of medicine as retaliation by sheriff “impl[ied] that [sheriff] was deliberately indifferent to potential harm to Plaintiff”).
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official capacity can be held directly liable under § 1983 when a “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694. An actionable “policy or custom” can arise “through an omission . . . that ‘manifest[s] deliberate indifference to the rights of citizens’” or “through a practice that is so ‘persistent and widespread’ as to constitute a ‘custom or usage with the force of law.’” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 217 (4th Cir. 1999)); accord Newhard v. Borders, 649 F. Supp. 2d 440, 446 (W.D. Va. 2009). Liability arises where a plaintiff shows that the policy or custom of inaction was “the ‘moving force of the constitutional violation’ specifically charged.” Milligan v. City of Newport News, 743 F.2d 227, 230 (4th Cir. 1984). A causal connection between “a known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom,” Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987), as, for example, where “[governmental] employees [or agents] could reasonably infer . . . tacit approval of the conduct in issue,” Milligan, 743 F.2d at 230.
Plaintiffs have sufficiently pled a custom or practice of deliberate indifference to their serious medical needs. An unconstitutional “custom ‘may arise if a practice is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.’” Lytle, 326 F.3d at 473 (quoting Carter, 164 F.3d at 218). A custom in this sense “may be attributed to a municipality when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees” Newhard, 649 F. Supp. 2d at 446 (quoting Spell, 824 F.2d at 1387). “‘Actual knowledge may be evidenced by recorded reports to
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or discussions by a municipal governing body. Constructive knowledge may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of its official responsibilities the governing body should have known of them.’” Id, 649 F. Supp. 2d at 446 n. 4 (quoting Spell, 824 F.2d at 1387). Further, such a custom gains the force of law where officials “fail[], as a matter of specific intent or deliberate indifference, . . . to correct or stop the practices.” Spell, 824 F.2d at 1391.
Plaintiffs allege that, [a]s a result of its officials’ and employees’ direct participation in and awareness of the review process involving FCCW prisoners’ hundreds of grievances recounting FCCW’s systemic provision of deficient medical care and/or outright failure to provide appropriate medical care, without requiring FCCW and Armor and/or PHS [Armor’s predecessor contractor] to adopt and implement corrective measures, VDOC has adopted and engaged in a custom or practice of deliberate indifference to plaintiffs’ serious medical problems and needs. Plaintiffs further allege “‘numerous particular instances’ of unconstitutional conduct,” see Lytle, 326 F.3d at 473, visited against the named Plaintiffs and others incarcerated at FCCW, and far less is required to survive a motion to dismiss, see Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 339 (4th Cir. 1994) (“There is no requirement that [plaintiff] detail the facts underlying his claims, or that he plead the multiple incidents of constitutional violations that may be necessary at later stages to establish the existence of an official policy or custom and causation.”). Thus Defendants’ contention that Plaintiffs have not sufficiently pled Defendants’ knowledge of deficient medical care is refuted. Plaintiffs allege that Defendants Schilling and Baskerville had “direct personal knowledge of the substance of prisoner grievances describing the pervasive nature of the deficient medical care to which the named plaintiffs and other prisoners similarly situated have been subjected at FCCW,” and that the VDOC likewise had such knowledge “[a]s a result of its officials’ and employees’ direct participation in and awareness of the [grievance]
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review process.” By exhibiting deliberate indifference to or tacitly authorizing the alleged deficient care, the VDOC Defendants made additional, ongoing violations at FCCW reasonably probable, see Spell, 824 F.2d at 1391, and Plaintiffs state a “facial[ly] plausib[le]” claim grounded on “factual content that allows the court to draw the reasonable inference that [the VDOC] [is] liable for the misconduct alleged,” see Iqbal, 556 U.S. at 678.
Defendants baldly assert that Plaintiffs’ “claims must fail because respondeat superior generally does not apply in a § 1983 case.” However, precedent “firmly establishe[s] the principle that supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates.” Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984). Supervisory liability “is not premised on respondeat superior, but on a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Id. (citation omitted). To establish supervisory liability under § 1983, a plaintiff must show the following:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices’; and (3) that there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). In a § 1983 action like this case, “liability may extend to the highest levels of state government” so long as the official fell within “the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked.” Slakan, 737 F.2d at 373. Plaintiffs have adequately alleged facts that, taken as true, reasonably give rise to the
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inference that the VDOC Defendants had “actual or constructive knowledge” of the “pervasive and unreasonable risk” that Plaintiffs and similarly situated prisoners were suffering and would continue to suffer violations of their Eighth Amendment right to constitutionally adequate medical care as a result of the pervasive shortcomings in the medical care provided at FCCW. See Shaw, 13 F.3d at 799. Plaintiffs allege that Defendants Schilling and Baskerville had “direct personal knowledge of the . . . pervasive nature of the deficient medical care” rendered to prisoners at FCCW. These allegations also support an inference that the VDOC Defendants had constructive knowledge of alleged unconstitutional deprivation of adequate medical care of a systemic nature.
Plaintiffs have also alleged facts to show the VDOC Defendants’ “continued inaction in the face of documented widespread abuses,” which “provides an independent basis for finding . . . deliberate[] indifferen[ce] or acquiesce[nce] in the constitutionally offensive conduct of [] subordinates.” See Slakan, 737 F.2d at 373. Plaintiffs allege “widespread abuses” in the form of systemic and pervasive deficiencies in the medical care provided at FCCW, and “continued inaction” on the part of the VDOC Defendants. Plaintiffs allege that the VDOC Defendants deliberately ignored or tacitly authorized the provision of grossly inadequate medical care to the inmates at FCCW, that the VDOC Defendants knew of these gross inadequacies through the grievance process, and yet neglected to respond with corrective action.
Plaintiffs have pled “an ‘affirmative causal link’ between the supervisor’s inaction and the harm suffered by the plaintiff” sufficient to establish causation. See Shaw, 13 F.3d at 799. The complaint states that Defendant Schilling, Director of Health Services, “exercis[es] direct day-to-day supervisory authority over the provision, under contract, of medical care services to prisoners incarcerated in VDOC correctional facilities by” Defendant Armor and its predecessor
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contractor, PHS. The complaint states that Defendant Baskerville, as Warden of FCCW, “is directly responsible at all times for the safe, secure and humane housing and treatment of all prisoners residing at FCCW, including the plaintiffs.” The complaint further states that, under VDOC Operating Procedure No. 866-1, Defendants Schilling and Baskerville both have direct responsibility over the review and resolution of grievances initiated by prisoners for failure to provide medical care or provision of inadequate medical care at FCCW. The complaint states that Defendant Robinson, VDOC’s Chief of Corrections Operations, “exercises general supervisory authority over VDOC’s provision of medical care services to prisoners incarcerated in VDOC facilities,” including FCCW, and that, in this capacity, Defendant Robinson oversees the Health Services Unit in its entirety. Accordingly, the complaint sufficiently alleges that Defendants Robinson, Shilling, and Baskerville were and are participants in the “the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked.” See Slakan, 737 F.2d at 373.
The same is true of Defendant Clarke. Plaintiffs allege that Clarke, the Director of the VDOC, “is the legal custodian of all prisoners” housed at FCCW “and is responsible for the safe, secure and humane housing and treatment of those prisoners.” Defendant Clarke “had the responsibility and capability to end the offensive practices.” See Slakan, 737 F.2d at 373. Yet, as alleged in the complaint, Defendant Clarke failed to affirmatively act to alter the contractors’ behavior and, thereby, perpetuated the constitutional abuses.4
4 As Director of the VDOC, Defendant Clarke has the duty “[t]o supervise and manage the Department and its system of state correctional facilities,” and the authority to “prescribe rules for . . . the health of prisoners in state correctional facilities.” Va. Code §§ 53.1-10(2), 53.1-25. The Code of Virginia also provides that “[i]t shall be the general purpose of the state correctional facilities to provide proper . . . medical and mental health care and treatment,” among other things. Va. Code § 53.1-32(A).
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In sum, Plaintiffs’ allegations, taken as true, necessarily survive the motion to dismiss. Plaintiffs have stated a viable claim for supervisory liability against each of the named VDOC Defendants in their official capacities and thus against the VDOC itself.

III. Defendants err in asking me to deny class certification, because Plaintiffs have not yet moved for class certification, and courts usually permit discovery relating to the issue before deciding whether to allow the action to proceed on a class basis. See, e.g., Kirby v. Blackledge, 530 F.2d 583, 588 (4th Cir. 1976) (prisoners were “entitled to pursue their discovery procedures” and “entitled to the opportunity to perfect their class action”).

IV.

For the stated reasons, Defendants’ motion to dismiss will be denied. An appropriate

order accompanies this memorandum opinion.

Entered this 11th

day of December, 2012.

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 IN THE UNITED STATES DISTRICT COURT 
 FOR THE WESTERN DISTRICT OF VIRGINIA 

CHARLOTTESVILLE DIVISION 


CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

PlaintiffS, Defendants.

CIVIL ACTION No. 3: 12-cv-00036
ORDER
NORMAN K. MOON
UNITED STATES DISTRICT JUDGE

For the reasons stated in the accompanying memorandum opinion, Defendants' motion to

dismiss (docket no. 10) is DENIED.

It is so ORDERED.

The Clerk of the Court is hereby directed to send a certified copy of this order and the

accompanying memorandum opinion to all counsel of record.

ENTERED this 11 th

day of December, 2012.

N~~~
UNITED STATES DISTRICT JUDGE

 
 Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 1 of 46 Pageid#: 396

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, BOBINETTE D. FEARCE, )

MARGUERITE RICHARDSON and

)

REBECCA L. SCOTT,

)

Prisoners residing at FLUVANNA

)

CORRECTIONAL CENTER FOR WOMEN, )

Route 250 West,

)

Troy, VA 22974,

)

)

Individually, and on behalf of all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

) Case No. 3:12-cv-00036

) (Sr. Judge Norman K. Moon)

HAROLD W. CLARKE

)

Director

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

A. DAVID ROBINSON

)

Chief of Corrections Operations

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

FREDERICK SCHILLING

)

Director of Health Services

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 2 of 46 Pageid#: 397

PHYLLIS A. BASKERVILLE

)

Warden

)

FLUVANNA CORRECTIONAL CENTER

)

FOR WOMEN

)

Route 250 West

)

Troy, VA 22974,

)

)

and

)

)

ARMOR CORRECTIONAL HEALTH

)

SERVICES, INC.

)

4960 S.W. 72nd Ave.

)

Suite 400

)

Miami, FL 33155

)

)

and

)

)

PAUL C. OHAI, M.D.

)

Medical Director

)

FLUVANNA CORRECTIONAL CENTER

)

FOR WOMEN

)

Route 250 West

)

Troy, VA 22974,

)

)

Defendants.

)

)

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs Cynthia B. Scott, Bobinette D. Fearce, Marguerite Richardson and Rebecca L.

Scott (collectively, “the named plaintiffs”), for themselves individually and on behalf of a class

of additional unnamed plaintiffs similarly situated, submit this First Amended Complaint seeking

declaratory and injunctive relief against defendants Harold W. Clarke, John M. Jabe, Frederick

Schilling, Phyllis A. Baskerville, Armor Correctional Health Services, Inc., and Paul C. Ohai,

M.D., Medical Director of the Fluvanna Correctional Center for Women (“FCCW”) (collectively

“defendants”). The named plaintiffs hereby allege, on the basis of their personal knowledge,

information and belief, as follows:

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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 3 of 46 Pageid#: 398
NATURE OF THE CASE 1. This is an action brought by the named plaintiffs, prisoners residing at FCCW, a facility of the Commonwealth of Virginia Department of Corrections, located in Troy, Virginia, seeking declaratory and injunctive relief to address and remedy the failure of FCCW, on a systemic, pervasive and on-going basis, to provide its residents with medical care sufficient either in nature or in extent to satisfy the minimum standards mandated by the Eighth Amendment to the United States Constitution. 2. The named plaintiffs seek preliminary and permanent relief from defendants’ knowing and intentional failure, acting under color of State law, to provide the named plaintiffs and all other similarly-situated women residing at FCCW with medical care adequate to protect them from substantial existing, on-going and/or imminent physical injury, illness and undue risk of premature death in deliberate indifference to their rights under the Eighth Amendment to be free from cruel and unusual punishment.
JURISDICTION AND VENUE 3. The named plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, because it arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3), because it seeks to redress the deprivation, under color of State law, of rights, privileges and immunities secured to the named plaintiffs and the members of the class they seek to represent by the Constitution and laws of the United States. This Court has authority to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure. 4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), because one or more of the defendants reside in this judicial district, and because all or a substantial part of the
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 4 of 46 Pageid#: 399
events, acts and/or omissions giving rise to the named plaintiffs’ claims occurred in this judicial district.
PARTIES A. Plaintiffs 5. Plaintiff Cynthia B. Scott, a 42-year old African-American woman, has been incarcerated at FCCW since 2003. Ms. Scott, who is serving a sentence that expires in 2040, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, sarcoidosis, a potentially life-threatening disease involving cellular inflammation in and around vital organs such as her lungs, liver, spleen and pancreas, as well as her eyes. Ms. Scott also suffers from a potentially life-threatening pulmonary embolism. 6. Plaintiff Bobinette D. Fearce, a 60-year old African-American woman, was first incarcerated at FCCW in 1998 upon its opening, after eleven years of imprisonment at Goochland Correctional Center for Women. Ms. Fearce, who is serving a sentence that may expire in or about 2017, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, degenerative cervical spine and disc disease, carpal tunnel syndrome affecting both of her wrists, chronic severe pain in multiple parts of her body, incontinence due to a weak and failing bladder, and temporomandibular joint disorder resulting in a misaligned left jaw. 7. Plaintiff Marguerite Richardson, a 56-year old Caucasian woman, has been incarcerated at FCCW since 1998. Ms. Richardson, who is serving a sentence that will expire between 2030 and 2042, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, high blood pressure and poor circulation, Hepatitis C, a large growth underneath her right ribcage which has yet to be definitively diagnosed, intense and chronic pain in her lower back, right hip and right leg, ankle and foot
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 5 of 46 Pageid#: 400
believed to be associated with either degenerative disc disease, sciatica and/or arthritis, and MRSA, a highly-contagious form of bacterial infection.
8. Plaintiff Rebecca L. Scott, a 29-year old Caucasian woman, has been incarcerated at FCCW since 2000. Ms. Scott, who is serving a sentence that expires in 2015, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, profound deafness, a recurring, extremely painful deformed toenail on the big toe of her right foot and disabling chronic back pain attributable to misalignment of bones adjacent to her spine.
B. Defendants 9. Defendant Harold W. Clarke is the Director of the Commonwealth of Virginia Department of Corrections (“VDOC”). As such, Mr. Clarke is the legal custodian of all prisoners sentenced to periods of incarceration by the courts of Virginia for felony offenses, and is responsible for the safe, secure and humane housing and treatment of those prisoners, including the plaintiffs. VDOC retains a nondelegable duty under the Constitution and laws of the United States and of the Commonwealth of Virginia to ensure that the medical care provided to prisoners residing in its correctional facilities meets or exceeds applicable constitutional minimum standards. 10. Defendant A. David Robinson is the Chief of Corrections Operations of VDOC. In that capacity, Mr. Robinson, upon information and belief, exercises general supervisory authority over VDOC’s provision of medical care services to prisoners incarcerated in VDOC correctional facilities. 11. Defendant Frederick Schilling is the Director of Health Services of the VDOC. In that capacity, Mr. Schilling, upon information and belief, exercises direct day-to-day supervisory
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 6 of 46 Pageid#: 401
authority over the provision, under contract, of medical care services to prisoners incarcerated in VDOC correctional facilities by defendant Armor Correctional Health Services.
12. Defendant Phyllis A. Baskerville is an employee of VDOC and has served as the Warden of FCCW since sometime in 2011. In this capacity, Ms. Baskerville is directly responsible at all times for the safe, secure and humane housing and treatment of all prisoners residing at FCCW, including the plaintiffs.
13. Defendant Armor Correctional Health Services, Inc. (“Armor”), is a for-profit corporation, organized and existing under the laws of the State of Florida and maintaining its principal place of business in Miami, Florida. On or about October 18, 2011, Armor assumed contractual responsibilities, pursuant to modifications to an existing contract between Armor and VDOC -- Contract DOC-05-024-Armor -- to provide all medical, dental and mental health services needed to afford adequate and necessary health care to all prisoners residing at certain VDOC correctional facilities, including FCCW. In this capacity, Armor replaced and/or succeeded Corizon Health, Inc., formerly known as PHS Correctional Healthcare (formerly known as Prison Health Services, Inc.) (“PHS”), which provided healthcare services to prisoners residing at FCCW, subject to the terms and conditions of Contract DOC-05-024-PHS, from April 19, 2006 and continuously thereafter until these obligations were transferred to and assumed by Armor in October 2011.
14. Armor, in succeeding to and assuming PHS’ rights and obligations as the contractual provider of healthcare services at FCCW, and retaining essentially the same medical staff as was previously employed by PHS, effectively adopted and ratified PHS’ prior policies and customs with respect to the systemic failure to provide necessary and appropriate medical care and/or provision of deficient medical care to prisoners at FCCW, as its own.
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 7 of 46 Pageid#: 402
15. Defendant Paul C. Ohai, M.D., an employee and/or agent of Armor, assumed responsibilities as the Medical Director of FCCW, upon information and belief, on or about July 2, 2012. He filled the position previously occupied by David MacDonald, M.D., an employee and/or agent of Armor and, upon information and belief, the Medical Director at FCCW as an employee or agent of PHS, and subsequently Armor, since 2008. Dr. MacDonald’s responsibilities, policies and practices remained consistent over the course of his employment at FCCW by both companies. Defendant Ohai, his predecessor Dr. MacDonald, and the employees and/or agents of Armor working under his or Dr. MacDonald’s supervisory authority, are directly responsible for the provision of adequate, appropriate and humane medical care services to all prisoners residing at FCCW, including the named plaintiffs, as contemplated by the Constitution and laws of the United States and of the Commonwealth of Virginia, as well as in accordance with Armor’s contractual obligations to VDOC.
16. Each of the individual defendants is sued in his or her official capacity. At all times relevant to the events, acts and/or omissions alleged in this Complaint, the individual defendants and Armor, individually and collectively, have acted under color of State law, pursuant to their authority and responsibilities as officials, employees and/or agents of the Commonwealth of Virginia.
FACTUAL BACKGROUND A. FCCW And Its Medical Services 17. FCCW, which was conceived, designed and constructed specifically for the purpose of serving as a “model” women’s prison, opened in 1998. The facility houses approximately 1,200 prisoners (about forty percent of the total number of women prisoners in Virginia), a majority of whom are 35 years of age or older and are serving median sentences of 20 years. FCCW was designed to include a 68,000-square foot medical building in which
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 8 of 46 Pageid#: 403
medical, dental and mental health services are provided for the women comprising FCCW’s own general population. The medical unit also serves incarcerated women with serious medical problems residing in other VDOC facilities, who are transferred to FCCW for the purpose of receiving a heightened level of care.
18. Subject to the supervision and oversight of defendant Dr. Ohai and, previously, Dr. MacDonald, the Medical Director at FCCW, Armor employs or, during times relevant to the causes of action and claims for relief set forth in this lawsuit, employed a Medical Staff consisting of Donald A. Remaly, M.D., another general practice physician, and approximately 10-to-15 additional health care providers including, upon information and belief, registered nurses, licensed practical nurses and certified nursing assistants.
19. These registered nurses, licensed practical nurses and certified nursing assistants perform the initial “intake” examinations of prisoners upon their arrival at FCCW, the purpose of which is to review each prisoner’s medical history and make specific notations regarding the prisoner’s existing condition(s), medical needs (if any) and pending course of treatment, in order to determine what each such prisoner might need by way of continuing attention and/or treatment during her term of incarceration at FCCW.
20. The nurses also preside over and administer the “Sick Call” process at FCCW. At Sick Call, prisoners complaining of health problems, having submitted a written request for care, are screened and evaluated for the purpose of determining their need for an appointment with a physician. Absent waivers which are virtually never granted, each prisoner is charged a $5.00 “co-pay” fee for each Sick Call visit. The nurses staffing Sick Call are also authorized to administer first aid and dispense, in limited quantities, non-prescription pain medication.
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 9 of 46 Pageid#: 404
21. Under the Sick Call protocol, persons lacking the medical training and experience of physicians, certified physicians’ assistants or registered nurses, are delegated the responsibility and authority to determine whether a prisoner will be scheduled for an appointment with a doctor and what, if any, treatment short of a doctor’s appointment an ailing prisoner will receive. Only upon referral to a doctor will the prisoner be accorded the opportunity to have an appropriately-trained medical professional determine whether she merits or requires enhanced treatment or care by a specialist outside of FCCW.
22. Apart from the routine Sick Call process, prisoners may submit a request for care on an emergency basis; however, FCCW, upon information and belief, virtually never honors prisoners’ requests for emergency medical care, regardless of the true circumstances or the prisoners’ actual needs.
23. The nursing staff also has responsibility for distributing prescription medication to prisoners through the “Pill Line” process in which, often under extremely harsh conditions -such as having to stand outdoors in a single-file line at 3:00-4:00 a.m., exposed to rain, snow, severe cold or excessive heat on a nightly basis -- the prisoners are ostensibly provided with the medication dictated by their various ailments and conditions. With disturbing regularity, however, prisoners may stand in the Pill Line for one hour or more, under harsh circumstances, only to receive the incorrect prescription, or to be told that their medication was forgotten back at the Infirmary by the nurses, or is simply unavailable because delivery of the medication to FCCW is late arriving or was never even ordered in the first place because the prescription was misplaced or the order was not placed due to “oversight”.
B. The Named Plaintiffs’ Individual Medical Issues And Claims 24. Plaintiff Cynthia Scott, who is 42 years of age, suffers from asthma and a host of other serious medical problems. In connection with a complaint that she was having great
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 10 of 46 Pageid#: 405
difficulty breathing, she was seen at Sick Call in August 2009 for what was originally believed to be chronic bronchitis.
25. By the time Ms. Scott was seen at Sick Call for a follow-up examination regarding what was thought to be bronchitis in September 2009, she had begun to experience a lack of appetite and significant weight loss. No cause was determined for these symptoms.
26. Based upon her complaints that she was experiencing hot and cold sweats, continued breathing problems and a continuing significant weight loss, Dr. Remaly saw Ms. Scott in February 2010. He told her that her symptoms were the result of the on-set of the early stages of menopause. He also stated that her body was rejecting protein and that she needed a higher-protein diet. Although a blood test confirmed the existence of a protein deficiency, nothing was done by FCCW to alter or improve her diet.
27. During the first six months of 2010, Ms. Scott, without either dieting or exercising, lost more than 40 pounds, in regard to which early menopause and a protein deficiency were the only explanations offered by FCCW Medical Staff.
28. On or about June 18, 2010, in response to Ms. Scott’s ongoing complaints of severe shortness of breath, a chest x-ray was taken. A nurse-practitioner informed Ms. Scott that the x-ray showed the presence of large masses in each of her lungs, which the nurse stated were probably cancer. Not until then was Ms. Scott sent to the University of Virginia Medical Center (“UVA”) for CT-scans, which were conducted on July 7 and July 14, and a lung biopsy on July 19, 2010.
29. On August 5, 2010, a UVA pulmonologist told Ms. Scott that she has sarcoidosis -- a disease in which abnormal collections of chronic inflammatory cells (granulomas) form as nodules within the chest cavity which, in some cases, may cause respiratory failure and death --
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 11 of 46 Pageid#: 406
rather than lung cancer. The specialists prescribed 40 mgs. per day of Prednisone for 30 days, followed by a reduction in the dosage to 20 mg./day for an additional 60 days, after which she was to have a follow-up examination.
30. Upon Ms. Scott’s return to FCCW, Dr. MacDonald, without any consultation with her UVA specialists, summarily reduced her prescription to 30 mg./day of Prednisone (rather than 40 mg./day) for the first 30 days followed by 20 mg./day for the next 40 days (instead of 60 days).
31. On December 16, 2010, Ms. Scott had her follow-up appointment with her specialists at UVA. This was the first time that she or her doctors learned that Dr. MacDonald had departed from the prescribed course of medication that the UVA doctors had established in August. The UVA specialists placed Ms. Scott back on 10 mg./day of Prednisone for three months, and specifically instructed that FCCW carry out the prescription as ordered, without deviation.
32. Ms. Scott’s UVA Health System medical records for October 27, 2011 report that on that day, her UVA doctors were hampered in their attempt to conduct a six-minute treadmill test to assess the adverse impact of the sarcoidosis on her lung capacity due to the fact that her legs were bound in shackles that the FCCW correctional officer accompanying her to UVA refused to remove.
33. Ms. Scott has repeatedly sought, and continues to seek, specific information regarding the implications of her sarcoidosis diagnosis, the course of future treatment that is to be followed for her illness and her long-term prognosis. FCCW Medical Staff has ignored or, in any event, failed to respond to her inquiries.
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 12 of 46 Pageid#: 407
34. In late November 2011, Ms. Scott began to experience severe swelling in her lower left leg. Dr. Remaly thought that the swelling might be attributable to birth-control pills (Nortrel) that Ms. Scott had been taking regularly over the course of many years, and ordered that she discontinue the medication. Upon information and belief, Ms. Scott was taken off of her Nortrel prescription in January 2012.
35. Despite termination of the birth-control pills, the severe swelling did not abate, but rather got worse, and Ms. Scott initiated a series of Sick Call visits, sometimes two or three per week, seeking treatment. Upon information and belief, no meaningful treatment was provided.
36. On or about the evening of May 1, 2012, with the swelling so extreme that Ms. Scott lost feeling in her toes and felt that her lower leg was likely to burst open, correctional officers in Ms. Scott’s building summoned an FCCW nurse to examine Ms. Scott in the Nurse’s Station. The nurse immediately called and left a message for Dr. MacDonald, who came to examine Ms. Scott the next morning at 6:15 a.m. After a brief examination, Dr. MacDonald advised Ms. Scott that the swelling was due to arthritis and that she should put on a pair of support stockings to alleviate the problem.
37. Certain that arthritis was not the cause of the extreme, painful swelling, Ms. Scott placed a call to her mother, who then contacted Dr. MacDonald by telephone to express her serious concerns regarding her daughter’s condition. Dr. MacDonald assured Ms. Scott’s mother that Ms. Scott was being “well taken care of”.
38. On May 3, 2012, Ms. Scott was seen by Dr. Remaly for a regularly-scheduled appointment regarding her sarcoidosis. Dr. Remaly rejected Dr. MacDonald’s conclusion that Ms. Scott’s swollen leg was attributable to arthritis, and ordered that she be sent to UVA for an
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ultrasound of her leg and foot. The following day, Dr. MacDonald again examined Ms. Scott and informed her that someone would come to FCCW on May 8, 2012 to perform the ultrasound.
39. Not until late in the afternoon on May 10, 2012 was the ultrasound on Ms. Scott finally conducted. The examiner told Ms. Scott that she “didn’t like what she saw” and ordered that Ms. Scott be taken immediately to the Emergency Room at UVA Medical Center. An ultrasound performed upon Ms. Scott’s arrival at UVA confirmed that she had a blood clot in her left leg, and a subsequent x-ray examination established that fragments of the blood clot had traveled to her lungs. She was immediately admitted to UVA for an overnight stay and started on injections of Levenox, an anticoagulant.
40. After receiving Levenox injections in her stomach at 9:00 p.m. on May 10 and at 9:00 a.m. the following morning, Ms. Scott was released from UVA and returned to FCCW on the afternoon of May 11, 2012. She was told that she was to continue to receive abdominal injections of Levenox twice a day for seven days, with blood work to be performed at regular intervals to ensure that the medication was working properly, and that after seven days, she would transition to Coumadin (Warfarin), an alternative anticoagulant available in pill form which she would likely need to take for the rest of her life.
41. Upon her arrival back at FCCW, a nurse, at Dr. MacDonald’s direction, removed from Ms. Scott’s possession the copy of the written directions explaining her intended course of treatment that had been provided to her at UVA. Ms. Scott did not receive the Levenox injection at 9:00 p.m. on the evening of May 11 that she was supposed to receive. At 4:00 a.m. Pill Line on May 12, she was informed by a nurse that there were no orders regarding any injections she was to be provided. Ms. Scott returned to her cell and immediately prepared and submitted an Emergency Medical Grievance. It was returned, signed by the same nurse Ms. Scott had spoken
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to at Pill Line, indicating that her prescribed medication would have to be ordered. At the 9:45 a.m. Pill Line later on May 12, Ms. Scott received one 120 mg. injection.
42. In the following days, Ms. Scott received only one 120 mg. injection of Levenox based on Dr. MacDonald’s instructions, rather than two injections of 100 mgs. each as had been expressly ordered by her treating physician at UVA, causing Ms. Scott grave concern that potentially life-threatening blood clots in her system are not being treated properly. Finally on May 15, she began to receive injections of 100 mg. of Levenox twice per day.
43. Ms. Scott has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to her serious medical problems and needs.
44. Plaintiff Bobinette Fearce, who is 60 years of age, was diagnosed with a degenerative disc disease and had surgery in 2001, which was performed by Dr. Gregory Helm, a neurosurgeon at UVA. The surgery involved the fusing of two vertebrae in the front of her neck. Although extended physical therapy was prescribed for Ms. Fearce to assist her rehabilitation from this surgery, Ms. Fearce was provided with limited physical therapy only irregularly, during the first three months after her return to FCCW, which was then discontinued entirely.
45. In late 2007, Ms. Fearce began to experience a loss of strength in her hands, as well as a loss of balance when standing, and was returned to UVA for a series of diagnostic examinations and tests by the neurological specialists on staff there, including an MRI in December 2007 and a CT-scan in March 2008.
46. The tests showed that Ms. Fearce is suffering from further degenerative disc disease at several different levels of her cervical spine, which was of a “significant” degree of
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severity in some areas and “mild” in others. The UVA specialists also determined that Ms. Fearce has “moderately severe right and mild left” carpal tunnel syndrome.
47. In regard to treatment of Ms. Fearce’s bilateral carpal tunnel syndrome, Dr. Helm prescribed that she be provided wrist splints, and noted that if the splints were ineffective, carpal tunnel release, a form of corrective surgery, should be the next step.
48. Ms. Fearce was supplied with wrist splints by FCCW in 2008, but they were ineffective in relieving her symptoms and she continues to suffer severe pain and weakness in her arms and wrists and numbness in her fingers, even when her wrists are immobilized.
49. In mid-2009, Ms. Fearce continued to complain of severe chronic pain and discomfort in her neck, back and wrists associated with the degenerative cervical spinal disease and carpal tunnel syndrome from which she suffers. Dr. Remaly, rather than referring Ms. Fearce back to her UVA specialists for further examination and treatment (including the carpal tunnel release surgery that had previously been prescribed), decided to treat Ms. Fearce’s condition by providing her with injections of Prednisone and hydrocortisone to her wrists and back on a twice-monthly basis. The injections, which commenced in August 2009, proved ineffective to relieve Ms. Fearce’s pain and other symptoms within a few months’ time.
50. Despite Ms. Fearce’s repeated pleas to be sent back to UVA for further examination by Dr. Helm and/or other neurological specialists with the training and experience to assess her condition and devise an effective (or, at a minimum, a more effective) course of treatment, FCCW Medical Staff has refused to refer Ms. Fearce back to UVA for specialized care, until February or March 2012. As a result, the extent of the further progression of Ms. Fearce’s degenerative spine disease, and its possible adverse impact upon Ms. Fearce’s overall health and well-being, was not assessed from March 2008 until four years later.
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51. In the meantime, FCCW disregarded Ms. Fearce’s need for an altered course of medication and treatment, including physical therapy, to address her constant, chronic pain. In response to one complaint by Ms. Fearce regarding the inadequacy of her prescribed pain medications, Dr. MacDonald refused to either change Ms. Fearce’s medication or increase her dosage, stating that “[t]here are risks to taking long-term Tylenol and non-steroidal antiinflammatory drugs (NSAIDS). We try to limit the use of these, in order to avoid the risks of liver and kidney disease.” Dr. MacDonald’s solution was to advise Ms. Fearce to purchase the over-the-counter form of Tylenol from the FCCW Commissary. FCCW, however, limits the amount of medication a prisoner may purchase at the Commissary at any one time to twelve packets, each containing two 325-mg. tablets, and also limits the frequency with which such purchases may be made to once every 10 days-to-two weeks, even assuming that Ms. Fearce possessed sufficient financial resources to purchase her own pain medications on a regular basis, given her limited ability to perform wage-earning jobs within the Prison in light of her myriad physical ailments. These factors combine to eliminate any realistic possibility that Ms. Fearce could effectively offset her deficient course of prescription medication for severe chronic pain through the purchase of packets of over-the-counter Tylenol tablets, at her own expense, from the Commissary.
52. Due to a chronic bladder problem dating from sometime in 2004, Ms. Fearce suffers from incontinence, and must wear adult diapers at all times. In late 2006, Ms. Fearce was sent to UVA for an examination, and a specialist diagnosed “pneumaturia and stress incontinence of urine” relating to “moderate to marked descensus of the bladder.” Surgery involving the insertion of a “mid-urethral sling” was prescribed. However, upon Ms. Fearce’s return to
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FCCW, Dr. MacDonald informed her that she is “too old” to be afforded the surgery that would correct her bladder condition.
53. Dr. MacDonald issued Ms. Fearce a Medical Profile -- a written authorization prepared by the Medical Staff allowing an prisoner some form of special accommodation for specific medical reasons -- allowing her to use the bathroom on an as-needed basis, and to utilize the laundry facilities to wash her clothes on an as-needed basis if they became soiled, in recognition of her incontinence. However, Dr. MacDonald later arbitrarily rescinded the Medical Profile upon the demand of FCCW Correctional Staff, despite no change in Ms. Fearce’s medical condition or resulting physical needs, based solely upon alleged security concerns that have never been explained to Ms. Fearce or articulated in writing insofar as she is aware.
54. As a result of the rescission of the Medical Profile granting Ms. Fearce bathroom and laundry privileges, Ms. Fearce experienced frequent occasions on which she wet herself and soiled her clothing or bedding, which she was not permitted to wash until her next regularlyscheduled access to the laundry, whenever that might be. These incidents caused Ms. Fearce to experience extreme personal discomfort, embarrassment and humiliation, and subjected her to ridicule by other prisoners.
55. Ms. Fearce suffers from temporomandibular joint (TMJ) disorder, a condition that began to cause her serious problems in 2007-08. Ms. Fearce’s jaw is misaligned upon closure due to the disorder. It causes her, on a recurring basis, to inadvertently bite herself on the inner wall of her left cheek, as well as her tongue. Repeated accidental bites to the same areas of her inner cheek and tongue have resulted in cuts and bruises that never have the chance to heal and have become ulcerated, making it extremely painful for Ms. Fearce to eat, as well as to talk.
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Ms. Fearce has repeatedly sought appointments with FCCW Medical Staff and/or Dental Staff seeking treatment for the cuts, bruises and open sores in her mouth attributable to her TMJ disorder.
56. At an appointment conducted on or about June 3, 2010, Dr. Remaly told Ms. Fearce that she requires corrective dental treatment to address her TMJ disorder and misaligned bite, without which the internal damage to her cheek and tongue will recur indefinitely.
57. On June 15, 2010, Ms. Fearce was seen for examination by Dr. Wood, a dentist on staff at FCCW. Dr. Wood advised Ms. Fearce that she needs braces, and oral surgery, to permanently correct her TMJ disorder, but that neither of these measures would be provided to Ms. Fearce during her incarceration at FCCW because they are too expensive.
58. Dr. Wood devised a multi-step strategy intended to partially mitigate the continuing adverse effects of Ms. Fearce’s TMJ problem. Dr. Wood indicated that she would schedule an appointment to fill cavities that were present in certain of Ms. Fearce’s teeth, and took a molded impression of Ms. Fearce’s teeth in order to create a permanent tooth guard for Ms. Fearce to wear to protect against accidental bites after the cavities were filled. Dr. Wood also used a file to dull the sharp edges of some of Ms. Fearce’s teeth, in order to make inadvertent bites to her inner cheek and tongue less penetrating, painful and harmful.
59. Subsequent to the mid-June 2010 appointment with Dr. Wood, a follow-up appointment for the filling of Ms. Fearce’s cavities was provided. However, the filing of the sharp edges of Ms. Fearce’s teeth by Dr. Wood left those teeth painfully sensitive to heat, cold and any hard substances Ms. Fearce attempts to chew. Meanwhile, Ms. Fearce’s TMJ disorder remains untreated, and her misaligned teeth continue to cause extremely painful accidental biting
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of her inner cheek and tongue, aggravating prior cuts and sores and creating new ones for which FCCW Medical Staff’s sole advice is that she gargle with salt water in an attempt to ward off infections.
60. Due to the host of medical problems with which she is afflicted including, in particular, a chronically stiff and sore neck and back attributable to her degenerative disc disease, as well as arthritis in her left hip and right knee, Ms. Fearce must often walk with a cane. This is significantly more difficult due to the numbness and weakness in her hands and wrists caused by her bilateral carpal tunnel syndrome.
61. In recognition of Ms. Fearce’s mobility challenges and in order to provide her with better access to the Infirmary and the locations where meals are served and Ms. Fearce takes continuing education classes, Ms. Fearce was provided a Medical Profile in or about November 2009, indicating that she should be transferred to a one-person cell in Building 2, a centrally-located housing unit at FCCW.
62. Ms. Fearce was residing in general population in a double cell in Building 3, awaiting the transfer to a single cell in Building 2 dictated by her Medical Profile when, as of June 29, 2010, Ms. Fearce was transferred, at the direction of FCCW Correctional Staff, to a cell in Building 5, the residential unit located farther away from the various locations to which Ms. Fearce must walk on a frequent basis than any other housing unit at FCCW.
63. Ms. Fearce complained about her transfer to Building 5, on the grounds that the action was in direct contradiction of her Medical Profile, and that walking from Building 5 to the Infirmary, meals, classes, etc., was causing her undue pain and harm. Her Medical Profile for her transfer to a single cell in Building 2 was summarily rescinded by FCCW Medical Staff based on alleged security considerations raised by Correctional Staff bearing no relationship to
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any legitimate medical justification. Not until September/October 2010 was Ms. Fearce finally transferred from Building 5 to Building 2, where she resided until recently.
64. Bathroom access is critical for prisoners like Ms. Fearce who have medical problems that make it difficult, if not impossible, for them to wait long periods of time to use the bathroom. In addition to the incontinence from which Ms. Fearce suffers, as addressed above, she also must take laxatives several times a week that assist her in relieving herself. A recent change in internal policy at FCCW, involving the implementation of a nighttime bathroom “list”, means that during overnight hours when Ms. Fearce calls the guard in the building in which she resides to indicate her need to use the bathroom, her name is placed at the end of a list of other prisoners who asked to use the bathroom before her. At times, the wait has been as long as fiftyfive minutes, causing Ms. Fearce great emotional distress and/or in having to relieve herself in her diaper. To compound the problem, after years of having a Medical Profile providing her with the opportunity to reside in a single cell in which Ms. Fearce was permitted to change her diaper and to change out of soiled clothing, when necessary, in privacy, Ms. Fearce’s Medical Profile was revoked and she was then reassigned to a double cell that she had to share with a roommate. Ms. Fearce’s incontinence and need to utilize diapers has not changed, and the justification for her prior Medical Profile for a single cell remains the same. Dr. MacDonald, in response to Ms. Fearce’s grievance, stated that she did not qualify for a single cell.
65. By letter dated June 13, 2012, directed to defendant Warden Baskerville by undersigned counsel from the Legal Aid Justice Center on Ms. Fearce’s behalf, Ms. Fearce’s serious concerns regarding the adoption of the nighttime bathroom list policy and the revocation of her Medical Profile for a single cell were raised and immediate corrective action on the part of
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FCCW was requested. Although a prompt response to the letter was sought, Warden Baskerville never responded to the June 13 letter.
66. Meanwhile, Ms. Fearce was suddenly transferred to a Ward in the Infirmary shared with five other women, where she was confined without access to any recreational activities or the opportunity to attend religious services or education classes. Based upon several comments by Dr. MacDonald to Ms. Fearce referencing “the June 13 letter”, it appears that Ms. Fearce was retaliated against for having attempted to raise legitimate concerns with respect to the nature and quality of her medical care at FCCW through the assistance of legal counsel. Further to this point, Ms. Fearce, upon information and belief, was released from the Infirmary and returned to general population and a double cell in mid-August 2012, contrary to her prior Medical Profile and continuing legitimate needs for a single cell.
67. Ms. Fearce has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to Ms. Fearce’s serious medical problems and needs.
68. Plaintiff Marguerite Richardson, who is 56 years of age, suffers from high blood pressure and poor circulation, for which use of the prescription drug Lasix has been directed. The drug has a diuretic effect on Ms. Richardson, causing her to have frequent need to use the bathroom.
69. Ms. Richardson has repeatedly requested FCCW Medical Staff to issue her a Medical Profile granting her bathroom privileges on an as-needed basis, but these requests have been rejected on the grounds that the Profile would not be honored by Correctional Officers in any event and that bathroom access is a “security issue” subject to the sole discretion of the
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Warden. Ms. Richardson has been subjected to disciplinary charges on multiple occasions when she has used the bathroom without prior permission in order to avoid urinating on herself.
70. Ms. Richardson has been told that she has Hepatitis C, an infectious disease affecting the liver, caused by the Hepatitis C virus (HCV), which is often asymptomatic. Since learning that she carries the HCV, Ms. Richardson has repeatedly requested that she be provided information regarding its effects, and treatment to the extent treatment is appropriate. FCCW Medical Staff has generally disregarded Ms. Richardson’s numerous inquiries. She is completely uncertain as to what, if any, adverse impact HCV may be having on her health and well-being.
71. Ms. Richardson has a large mass located under her right ribcage that causes her severe pain and discomfort. At various times, a nurse told Ms. Richardson that the mass might be a hernia of her liver, and Dr. Remaly suggested that the mass might be attached to her stomach wall. In response to Ms. Richardson’s requests for tests to establish a definitive diagnosis and a plan for treatment, Dr. MacDonald wrote a note on February 21, 2011, stating: “If you have a hernia, surgeons will usually not repair. If it is protruding (bulging) and you cannot reduce it, let me know.” FCCW Medical Staff has failed to make any further response to Ms. Richardson’s continuing efforts to find out the nature of her condition and how it might be treated through the date on which this action was commenced.
72. Ms. Richardson suffers from intense chronic pain in her lower back, and shooting pains and numbness through her right hip and down her right leg, ankle and foot. Although FCCW Medical Staff have suggested to Ms. Richardson at various times that she has degenerative disc disease, sciatica and/or arthritis, Ms. Richardson remains uncertain of the cause of the severe pain she is experiencing and has repeatedly requested examination and
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testing. In February 2011, Dr. MacDonald responded that Ms. Richardson’s problem “has been determined to be lumbar pain with a loss of sensation to part of [her] lower extremities,” and stated that “no further tests are needed at this time.” Apart from this statement, which merely describes her reported symptoms, Ms. Richardson’s entreaties have not received any response.
73. In the Spring of 2011, Ms. Richardson sought medical attention through Sick Call visits for a number of small, painful sores or boils on the back of her lower left leg. Ms. Richardson was prescribed a variety of antibiotics, including Keflex, to treat the sores, but they did not go away and continued to cause her pain through the Summer and Fall.
74. In January 2012, Ms. Richardson’s severely swollen, discolored left heel was examined by Dr. MacDonald, and fluid was extracted for analysis. Ms. Richardson’s prescribed dosage of Keflex was increased, but she was not provided any medication for pain. The test results were not revealed to her.
75. Ms. Richardson continued to experience severe swelling and extreme pain in her lower leg and foot. Emergency medical grievances she filed seeking treatment and pain medication were disregarded.
76. Finally, at a Sick Call visit in May 2012, one of the FCCW nurses called up the results of Ms. Richardson’s prior test on a computer in the Infirmary and informed her that she had Methicillin-resistant Staphylococcus aureus (MRSA), a highly contagious form of bacterial infection which may be fatal if left untreated. Only after this disclosure was Ms. Richardson’s medication changed by Dr. Remaly from Keflex to Bactrim, which has begun to gradually treat the infection in an effective manner.
77. Ms. Richardson has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional
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distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to Ms. Richardson’s serious medical problems and needs.
78. Plaintiff Rebecca Scott, who is 29 years of age, has experienced, over several years, a recurring problem with an extremely painful deformed toenail on the big toe of her right foot, which causes her great discomfort and makes it very difficult for her to walk on a day-today basis.
79. Ms. Scott has put in numerous requests for Sick Call visits to have the toe examined, and has seen Dr. Remaly for the problem. Despite her extreme pain and discomfort, however, Dr. Remaly has told Ms. Scott that there is nothing wrong with the toenail, and he has refused to provide her with any treatment other than to trim the nail so close to the skin that her toe itself has been cut and become infected, making her condition even more painful.
80. After a nurse suggested that Ms. Scott contact Dr. MacDonald, she did so in November 2010, requesting that he arrange for her to see a specialist who could remove the toenail permanently. In a written response to her request, Dr. MacDonald stated: “Toe nail fungus is frustrating. Some people have realized that putting oil/tabasco sauce or hair products under the toe nail kills the fungus. I have had some success on the outside with Vick’s VaporRub/tabasco sauce/etc.”
81. Ms. Scott contacted Dr. MacDonald again, pointing out that her problem is not “toe nail fungus” but rather a deformed toenail that she wanted permanently removed. In midDecember 2010, Dr. MacDonald responded as follows: “Toe nail fungus is a frustrating problem. Your toe nail was removed. When a nail is removed, it may grow back crooked. Repeated toe nail removal may not help. If you continue to have problems, [contact me again].”
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82. Subsequent to this exchange, Ms. Scott’s on-going attempts to obtain effective and/or specialized care for her deformed toenail condition have drawn no response from FCCW Medical Staff. The extreme pain and discomfort in her foot continue.
83. For several months, Ms. Scott requested a referral to an outside ear/nose/throat (ENT) specialist that FCCW Medical Staff consistently refused to honor. Ms. Scott’s hearing, which is already substantially diminished due to her profound deafness, is adversely affected each time her tonsils become infected and inflamed, a condition she experiences several times a year.
84. Dr. Remaly has told Ms. Scott that she needs to have her tonsils removed to prevent the recurring tonsillitis from which she suffers; however, Dr. MacDonald proclaimed that he “does not believe in” removal of the tonsils by surgery. As a result, Ms. Scott’s requests to be seen by an outside ENT specialist were summarily rejected up to the date on which this action was commenced.
85. Ms. Scott is also afflicted by a recurring back problem, which she experiences when misaligned bones in her back rub against her spine. She is essentially rendered immobile when the condition flares up.
86. Despite clear documentation in Ms. Scott’s medical records reflecting that she is asthmatic, Dr. Remaly prescribed Mobic (Meloxicam), a nonsteroidal anti-inflammatory drug which is contra-indicated for individuals with asthma, as the medical treatment for her back. Even after Ms. Scott had an adverse reaction upon her initial use of Mobic, Dr. Remaly declined to change the prescription. Only as a result of the intervention of a nurse practitioner on staff at FCCW was Ms. Scott taken off Mobic and prescribed Prednisone for her injured back.
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87. Ms. Scott has repeatedly requested a regimen of physical therapy to address her back issues; all such requests have been disregarded.
88. Ms. Scott has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to her serious medical problems and needs.
OTHER AFFECTED PERSONS 89. Patricia Knight, originally a named plaintiff in this action who is 55 years of age, allegedly suffered a stroke while incarcerated at the Piedmont Regional Jail in or about April 2005 which resulted in her temporary loss of weight-bearing capacity in her legs as well as the loss of strength and gripping capacity in her hands. In 2006, Ms. Knight was transferred to FCCW so that she could receive rehabilitative care. Upon information and belief, Ms. Knight was released from incarceration at FCCW in or about September 2012. 90. Because Ms. Knight was unable to walk at the time of her arrival at FCCW, she was immediately admitted to the Infirmary following her intake screening. Ms. Knight remained in the Infirmary for 11 months. During that time, she was not provided with any physical therapy. As a result, the loss of strength and gripping capacity in Ms. Knight’s hands essentially became permanent. Some of the weight-bearing capacity returned to Ms. Knight’s legs over time despite FCCW’s failure to provide any physical therapy. However, her ability to walk remains severely compromised due to her difficulties in holding and supporting a walker or a cane because of the weakness in her hands. 91. In 2006, Ms. Knight began to suffer from severe neck pain, for which she sought medical attention. Ms. Knight had to request repeated Sick Call visits over a period of nearly six months before she was finally referred for an appointment with a doctor, who acknowledged her
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need for specialized treatment. Ms. Knight, on or about December 1, 2006, had surgery at the Medical College of Virginia (“MCV”) to remove the C3 and C4 disks from her neck in order to relieve the severe pain she was experiencing.
92. After this surgery, Ms. Knight’s treating specialists at MCV prescribed physical therapy to assist her rehabilitation upon her return to FCCW. But, again, FCCW failed to provide it.
93. Ms. Knight has routinely recurring severe neck and back pain, but received no chronic care while at FCCW for her on-going condition. Instead, she was repeatedly required to submit Sick Call requests seeking medical attention, and, per FCCW policy, was charged a $5.00 “co-pay” for each individual Sick Call visit. This imposed an extreme economic hardship upon Ms. Knight given her physical incapacity to work in order to earn money.
94. Upon information and belief, when Ms. Knight arrived at FCCW at 2006, she was taking Ranexa, a prescription medication used to treat chronic chest pain (angina). Thereafter, FCCW discontinued Ms. Knight’s Ranexa prescription without explanation. A doctor at MCV involved in treating Ms. Knight in connection with her spinal surgery in 2007 advised her that she needed to resume taking Ranexa, but upon her return to FCCW, Dr. MacDonald rejected this instruction on the grounds that the medication was too expensive.
95. Ms. Knight, in late 2010, requested physical therapy to address extreme pain in her knees attributable to arthritis. Dr. MacDonald responded that Ms. Knight’s knee pain was due to excessive body weight, and that exercise and weight loss would reduce pressure on Ms. Knight’s joints without any need for physical therapy. Dr. MacDonald ignored the fact that the constant weakness and pain in Ms. Knight’s legs and her inability to walk without a walker or a cane essentially precluded her from exercising with sufficient frequency and vigor to cause
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meaningful weight loss. Meanwhile, Ms. Knight’s repeated requests for pain medication stronger than over-the-counter Tylenol for her chronic and severe knee, back and neck pain have been either ignored or refused by FCCW Medical Staff.
96. Ms. Knight, while residing at FCCW, suffered physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ acts and omissions reflecting their deliberate indifference to Ms. Knight’s serious medical problems and needs.
C. FCCW’s Systemic Failure To Provide Constitutionally-Adequate Medical Care
97. The named plaintiffs incorporate by reference, as though fully restated herein, the allegations set forth in Paragraphs 1 through 96 above.
98. The experiences reflected by and embodied in the named plaintiffs’ respective individual allegations provide only a partial indication of the systemic, pervasive nature of the deficiencies characterizing FCCW’s provision of and/or failure to provide medical care services to the women prisoners residing there. Given FCCW’s status as the facility, within the VDOC system, to which women prisoners with the most serious medical problems are sent for a purportedly heightened level of care, the critical implications of the systemic deficiencies characterizing the provision of medical care at FCCW are both apparent and disturbing.
99. The pervasive shortcomings in FCCW’s provision of medical care to its residents can be broadly viewed as attributable to two principal considerations: (i) deviations from the accepted and appropriate standard of care on the basis of cost considerations driven by Armor’s motivation to minimize its expenses and thereby maximize its corporate profits; and (ii) deviations from the accepted and appropriate standard of care on the basis of purported security concerns devoid of any genuine and legitimate penological justification. Neither of
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these considerations can validate or justify defendants’ past, present and on-going acts and omissions constituting and/or reflecting deliberate indifference to plaintiffs’ serious medical problems and needs.
100. Under the provisions of VDOC Operating Procedure No. 866.1, “Offender Grievance Procedure,” defendant Schilling, as Regional Ombudsman, is the individual to whom grievances initiated by prisoners residing at Fluvanna with respect to failure to provide medical care or provision of deficient medical care are or at relevant times were directed for ultimate review and disposition when such grievances have not been resolved to the satisfaction of the prisoner at earlier stages in the grievance process. As a result, Mr. Schilling has or, in contravention of relevant policy and sound correctional practice, has purposefully avoided, direct personal knowledge of the substance of prisoner grievances describing the pervasive nature of the deficient medical care to which the named plaintiffs and other prisoners similarly situated have been subjected at FCCW, as set forth in this Complaint.
101. Under the provisions of VDOC Op. Proc. No. 866-1, defendant Baskerville, as FCCW Warden, reviews and determines prisoner grievances with respect to failure to provide medical care or provision of deficient medical care in those instances in which a prisoner’s complaint regarding the nature or extent of medical care she has (or has not) received is not resolved to the prisoner’s satisfaction on an informal basis. As a result, Ms. Baskerville has or, in contravention of relevant policy and sound correctional practice, has purposefully avoided, direct personal knowledge of the substance of prisoner grievances describing the pervasive nature of the deficient medical care to which the named plaintiffs and other prisoners similarly situated have been subjected at FCCW, as set forth in this Complaint.
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102. As a result of its officials’ and employees’ direct participation in and awareness of the review process involving FCCW prisoners’ hundreds of grievances recounting FCCW’s systemic provision of deficient medical care and/or outright failure to provide appropriate medical care, without requiring FCCW and Armor and/or PHS to adopt and implement corrective measures, VDOC has adopted and engaged in a custom or practice of deliberate indifference to plaintiffs’ serious medical problems and needs.
1. Deviations From The Appropriate Standard Of Care Based On Cost Considerations (a) Deficient Sick Call Process
103. Upon information and belief, Armor maintains lower operating expenses, and thus increases its profits under its contract with VDOC, by retaining and employing licensed practical nurses (LPNs) and certified nursing assistants (CNAs) -- rather than physicians or registered nurses -- to make critical medical judgments. LPNs and CNAs administer the Sick Call process and make threshold determinations as to whether prisoners complaining of medical problems should be referred to a doctor for examination and treatment. The lack of training, expertise and experience that is characteristic of these lower-cost paraprofessionals creates a Sick Call process in which determinations regarding prisoners’ serious (or potentially serious) medical problems and needs are made by individuals unqualified to perform this function, with severe consequences for those prisoners subject to incorrect judgments.
104. The plights of plaintiff Cynthia Scott, as well as former plaintiff Patricia Knight, illustrate the serious implications for FCCW prisoners of a Sick Call process administered by under-qualified individuals employed on the basis of considerations of expense reduction and profit maximization rather than fundamental medical competency. Ms. Scott was seen at Sick Call for many months during which she suffered from breathing difficulties, catastrophic weight
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loss for which there was no explanation, and a protein deficiency in regard to which no modification of her diet was implemented before she was finally referred for testing that revealed she is afflicted with sarcoidosis, a serious, potentially life-threatening disease. Ms. Knight suffered through a repeated, fruitless series of Sick Call visits spanning six months before she was finally referred to a doctor concerning her severe, chronic neck pain. That doctor, upon finally examining Ms. Knight, immediately acknowledged her need for specialized treatment, resulting in belated spinal disk-removal surgery.
105. Cynthia Scott revisited the potentially life-threatening consequences of the woefully inadequate Sick Call process more recently in connection with the blood clot causing severe swelling and extreme pain in her lower left leg, in connection with which she had Sick Call visits from January to May 2012 before her circumstances became so dire that an ultrasound revealing the presence of the clot was finally ordered and conducted. Likewise, plaintiff Marguerite Richardson’s MRSA was dismissed as insignificant, or actively concealed, for months by those staffing Sick Call, before she was finally informed that she was afflicted with this highly-contagious bacterial infection and began to receive proper treatment. During that time period, Ms. Richardson’s MRSA posed a serious health risk not only to herself, but to other FCCW prisoners with whom she routinely came in contact.
106. Defendants’ failure, or refusal, to expend the resources required to provide a Sick Call process that is staffed by properly trained and experienced medical personnel competent to adequately and properly assess the nature and extent of FCCW prisoners’ actual or potentially serious medical problems and refer them accordingly for appropriate attention and treatment constitutes deliberate indifference to serious medical needs.
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(b) Failure/Refusal To Acknowledge, Examine, Diagnose And Treat Serious Or Potentially Serious Prisoner Medical Problems
107. Upon information and belief, under the provisions of the contract between Armor and VDOC, the greater the amount of time and attention that Armor devotes to the medical needs of a particular prisoner, the greater the resulting expense, thus adversely affecting Armor’s profits.
108. As a result, prisoners residing at FCCW have repeatedly been subjected to situations in which FCCW Medical Staff have failed, or refused, to invest the time or effort required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns.
109. The circumstances of plaintiffs Marguerite Richardson and Cynthia Scott are illustrative. Ms. Richardson, who has a bulging mass underneath her right ribcage, which causes her severe pain and discomfort, has tried for months to persuade FCCW Medical Staff to perform tests, determine a diagnosis and prescribe treatment for this growth, all to no avail. She was still awaiting an appropriate examination, diagnosis and treatment when this action was commenced. Similarly, despite repeated complaints over a period of more than nine months during which she suffered chest pains, shortness of breath, night sweats and catastrophic weight loss, FCCW Medical Staff offered Ms. Scott nothing but a diagnosis of “protein deficiency” in her diet (in regard to which no corrective action was taken) and an assessment that she was experiencing “early-stage menopause”. Only in June 2010 was Ms. Scott finally provided with chest x-rays that ultimately led to further testing and a diagnosis of sarcoidosis -- a serious, potentially lifethreatening disease. Subsequent to this diagnosis, FCCW Medical Staff have steadfastly refused to inform Ms. Scott regarding the long-term implications of the disease from which she suffers.
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110. Defendants’ failure, or refusal, to acknowledge, examine, diagnose and treat the serious, or potentially serious, medical problems of FCCW prisoners in an appropriate and timely manner, as reflected by the experiences of Ms. Richardson and Ms. Scott, constitutes deliberate indifference to serious medical needs.
(c) Failure/Refusal To Refer Prisoners For Needed Specialized Care
111. Upon information and belief, under the provisions of the contract between Armor and VDOC, each referral of an FCCW prisoner to UVA or other outside medical facilities for specialized evaluation or care increases the operating expenses for which Armor is responsible and thus decreases its profits. As a result, FCCW prisoners have repeatedly been subjected to situations in which FCCW Medical Staff has failed, or refused, to make such referrals, despite the prisoners’ clearly apparent and often previously documented need for specialized care.
112. The circumstances of plaintiffs Bobinette Fearce and Rebecca Scott are illustrative. The progression of Ms. Fearce’s degenerative spine disease, and its possible adverse effects upon her overall health and well-being, were not measured or assessed by the specialists at UVA who previously treated her between March 2008 and February/March 2012. FCCW Medical Staff’s steadfast refusal to send Ms. Fearce back to UVA despite the acknowledged nature of her condition and her repeated requests during that four-year period caused her to suffer extreme, on-going pain. Likewise, the refusal of FCCW Medical Staff to refer Rebecca Scott to an outside ENT specialist over an extended period of time prior to date this action was commenced, despite clear acknowledgement by Dr. Remaly of her need for a tonsillectomy in order to prevent the recurring throat infections that adversely affect her already-diminished hearing, had no possible legitimate medical justification.
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113. Defendants’ failure, or refusal, in the face of a recognized need, to refer FCCW prisoners for specialized medical care at outside facilities constitutes deliberate indifference to serious medical needs.
(d) Failure/Refusal To Carry Out Specialists’ Prescribed Courses Of Treatment
114. Upon information and belief, under the provisions of the contract between Armor and VDOC, the greater the expense absorbed by Armor in regard to carrying out the courses of treatment prescribed by outside specialists in order to address the illnesses of FCCW prisoners that they have examined and diagnosed, the greater the adverse impact upon Armor’s profits.
115. As a result, FCCW Medical Staff routinely disregards the courses of treatment prescribed for prisoners by outside specialists who have examined them, in favor of treatment that is less expensive, but also less efficacious, in responding to the serious medical conditions and severe pain from which the prisoners suffer.
116. The circumstances of plaintiff Bobinette Fearce are illustrative. As described more fully above, Ms. Fearce suffers from severe chronic pain in her wrists, which, as a result of a CT-scan taken in March 2008 by UVA specialists, was diagnosed as attributable to “moderately severe right and mild left” carpel tunnel syndrome. The specialists concluded that if the wrist splints they prescribed for Ms. Fearce proved ineffective to treat the condition, carpel tunnel release, a surgical procedure, should be employed.
117. However, when wrist splints failed to address or remedy Ms. Fearce’s severe, chronic wrist pain, FCCW Medical Staff, rather than refer Ms. Fearce back to UVA for the carpel tunnel release surgery that had already been prescribed, unilaterally initiated an alternative course of treatment, involving the administration of steroid injections. The injections of Prednisone and hydrocortisone have been ineffective to remedy Ms. Fearce’s severe, on-going
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wrist pain. FCCW Medical Staff, notified by Ms. Fearce that the alternative (and significantly cheaper) course of treatment upon which they settled was not working, took no further action to address, much less resolve, Ms. Fearce’s chronic wrist pain until she was finally sent back to UVA for follow up in February/March 2012.
118. The circumstances of plaintiff Cynthia Scott are likewise illustrative. As reviewed above, Ms. Scott’s UVA specialists prescribed 40 mgs. per day of Prednisone for 30 days, followed by a reduced dosage of 20 mgs. per day for 60 days, in order to treat her sarcoidosis, in August 2010. However, immediately upon her return to FCCW, Dr. MacDonald unilaterally reduced the prescribed course of medication to 30 mgs. of Prednisone (rather than 40 mgs.) for 30 days, followed by 20 mgs. per day for 40 days (rather than 60 days). As a result, Ms. Scott was deprived of the beneficial effects on her condition that her specialists determined would result from the course of treatment they prescribed but FCCW repudiated. Likewise, Dr. MacDonald unilaterally reduced the dosage of anti-coagulant medication Ms. Scott was prescribed to receive following the discovery that she had a blood clot in her leg, fragments of which broke off and migrated to her lungs – posing a threat to her continued well-being.
119. Defendants’ failure, or refusal, in the face of specific instructions provided by outside medical specialists, to carry out the courses of treatment prescribed for plaintiffs and other similarly-situated FCCW prisoners, constitutes deliberate indifference to serious medical needs.
(e) Failure/Refusal To Provide Prisoners With Effective Medication For Severe, Chronic Pain
120. Upon information and belief, under the provisions of the contract between Armor and VDOC, the greater the expense absorbed by Armor in providing FCCW prisoners experiencing severe, chronic pain attributable to their serious health problems with effective pain
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medication in adequate amounts to relieve the prisoners’ suffering, the greater the adverse impact upon Armor’s profits.
121. As a result, FCCW Medical Staff, as a matter of routine, intentionally withholds from FCCW prisoners’ pain medication of a nature and extent sufficient to provide the prisoners with relief from the severe, chronic pain they are experiencing.
122. The circumstances of plaintiff Bobinette Fearce and former plaintiff Patricia Knight, respectively, are illustrative. Although, as described more fully above, Ms. Fearce suffers from a host of chronic conditions, including but not limited to, degenerative disc disease affecting her spine and carpal tunnel syndrome in both of her wrists, Dr. MacDonald has repeatedly refused to increase Ms. Fearce’s dosage of pain medication or to provide her with more effective alternative pain medication and has, instead, essentially instructed Ms. Fearce to fend for herself by suggesting that she can supplement her pain treatments by purchasing overthe-counter Tylenol from FCCW Commissary at her own expense. Similarly, FCCW Medical Staff repeatedly refused to provide Ms. Knight with anything more than over-the-counter Tylenol for her chronic and severe knee, back and neck pain attributable to degenerative disc disease and arthritis.
123. Defendants’ failure, or refusal, in the face of recognized suffering and need, to provide plaintiffs and other similarly-situated FCCW prisoners with pain medication sufficient in nature and extent to relieve the prisoners’ severe, chronic pain constitutes deliberate indifference to serious medical needs.
2. Deviations From The Appropriate Standard Of Care Based Upon Non-Medical “Security” Considerations
124. In recognition of the particular circumstances and needs encountered by plaintiffs and other similarly-situated FCCW prisoners as a result of the medical conditions from which
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they suffer, FCCW Medical Staff has occasionally issued Medical Profiles allowing certain special accommodations to these prisoners. However, the Medical Profiles have been arbitrarily revoked on the basis of purported “security” considerations raised by FCCW Correctional Staff, which lack either a medical or a legitimate penological justification.
125. As a result, plaintiffs and other similarly-situated FCCW prisoners have been arbitrarily deprived of the marginally greater degree of personal comfort, dignity and relief from pain, embarrassment and humiliation that were afforded by the accommodations established by their Medical Profiles.
126. The circumstances of plaintiffs Bobinette Fearce and Marguerite Richardson, respectively, are illustrative. Although, as described more fully above, Ms. Fearce suffers from a chronic incontinence condition in regard to which FCCW Medical Staff has refused to consider allowing her to have corrective surgery, Ms. Fearce was, temporarily, issued a Medical Profile that established her entitlement to use the bathroom and the laundry facilities on an as-needed basis in recognition of her condition. However, despite the lack of any change in Ms. Fearce’s condition, or her resulting physical and hygienic needs, Dr. MacDonald summarily rescinded the Medical Profile solely because FCCW Correctional Staff asked him to do so. Ms. Fearce’s Medical Profile for transfer to a single cell in Building 2, which was issued in recognition of her serious mobility limitations, was revoked under similar circumstances, without any medical or penological justification. Ms. Richardson, whose medication required for treatment of her high blood pressure and poor circulation causes her to experience a constant need for access to a bathroom, was denied a Medical Profile granting her bathroom privileges on an as-needed basis by FCCW Medical Staff on the grounds that FCCW Correctional Staff would not recognize or honor such a Profile even if one were provided.
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127. Defendants’ failure, or refusal, to grant and/or maintain special accommodations dictated by prisoners’ needs specifically attributable to their medical conditions on the basis of arbitrary “security” considerations having neither a medical nor a legitimate penological justification constitutes deliberate indifference to serious medical needs.
3. Unnecessary And Preventable Fatalities Attributable To FCCW’s Systemic Failure To Provide Constitutionally-Adequate Medical Care Have Already Occurred And Will Continue To Occur
128. Upon information and belief, the systemic practices and procedures adopted and implemented by PHS, and subsequently Armor have resulted in deaths which provision of appropriate medical care could and should have prevented. Such practices and procedures embody and reflect deliberate indifference to the serious medical needs of prisoners residing at FCCW and continue to pose an increased and undue risk of premature death to the named plaintiffs and the members of the class they seek to represent.
129. One such instance of unnecessary and preventable death involves the case of Darlene White, a 47-year old African-American woman and a long-time FCCW prisoner, who died in the Infirmary in the early morning hours of December 21, 2011.
130. Upon information and belief, sometime during the afternoon of December 20, 2011, Ms. White, an acknowledged diabetic, entered the Infirmary, complaining of a severe headache, nausea and diarrhea. Upon information and belief, after Ms. White experienced a wave of nausea and vomited near the control “bubble” in the Infirmary, a nurse gave her a shot of medication intended to relieve the nausea and sent Ms. White back to her housing unit.
131. Upon information and belief, in the early evening of the same day, Ms. White returned to the Infirmary, again complaining of severe headache and nausea. She was seated in a chair, inside the “F-Ward” segment of the Infirmary, rocking back and forth, holding her head
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and moaning in pain. A nurse checked Ms. White’s blood sugar and found that it was radically elevated above normal levels.
132. Upon the nurse’s instruction, Ms. White laid down on a bed in Room 2-F, continuing to hold her head, rocking and moaning in severe pain. A short time later, Ms. White requested help from another prisoner in the room, indicating that she was sick and in great pain. As the other prisoner was leaving the room to call for help, Ms. White again began vomiting. A short while later, a nurse entered the room and asked Ms. White a series of questions, none of which she answered. Ms. White did, however, say that she had defecated on herself and needed to be changed. The nurse indicated that she would get someone to clean up Ms. White’s vomit and change her, and left the room. The nurse returned some time later and spread a paper gown over the place on the floor where Ms. White had vomited. The nurse also placed a paper cup and a bedpan on the bed where Ms. White was laying, instructing Ms. White to use the cup and the bedpan if she needed to urinate or had diarrhea. Although Ms. White was barely conscious by this time, the nurse stated that she wanted to measure Ms. White’s fluid intake. However, the nurse never checked Ms. White’s vital signs, or examined or otherwise touched Ms. White in any way.
133. Upon information and belief, sometime later a different nurse entered Room 2-F and set about inserting an IV intake terminal into Ms. White’s arm. The nurse spoke to Ms. White, asked her questions, and requested Ms. White’s cooperation with respect to insertion of the IV, but Ms. White was completely non-responsive. The nurse stated that she intended to give Ms. White some IV fluids to make her feel better, but Ms. White did not react or respond. The other prisoner in the room reported that Ms. White needed to be changed, and the nurse
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responded “Oh. O.K.” She left the room thereafter and no one came back to clean up or change Ms. White, or to check on her condition despite her obvious non-responsiveness.
134. At about 3:15 a.m. on December 21, the other prisoner located in Room 2-F heard a ratting sound emanating from Ms. White’s throat and pushed the emergency button and told the nearby guard that Ms. White needed immediate attention. A nurse rushed into the room, yelling at Ms. White to elicit a response, but none was forthcoming. The nurse ran into the hallway and called a “Code Blue”. Although the nurses converging on the room thereafter discussed the performance of CPR, none was performed and no vital signs were measured.
135. At about 3:45 a.m., a guard instructed one of the nurses to call an ambulance. However, when the emergency response team arrived on the scene, they stayed for only a few minutes and took no action, as it was apparent that Ms. White was deceased and that no emergency existed.
136. Dr. MacDonald later entered the ward to which the prisoners who had been present in the room with Ms. White had been moved. He informed them that Infirmary personnel were “investigating” to make sure that no one on staff had caused Ms. White any harm, and stated that “we want to make sure that none of you are mistreated when you come here for medical care. I know that you get very good medical care here. Believe me, you do get good care.”
137. Upon information and belief, another case of unnecessary and eminently preventable death involved a prisoner named Jeanna Wright.
138. Upon information and belief, Ms. Wright complained of severe abdominal pain, accompanied by regular, sometimes daily, vaginal or rectal bleeding, for at least one year.
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Ms. Wright requested, paid for, and attended numerous Sick Call visits regarding her symptoms, but FCCW Medical Staff routinely assured here that she was “fine”.
139. Finally, earlier this year, Ms. Wright was seen by a doctor and referred to UVA for further examination and diagnostic testing, upon which it was discovered that she was suffering from Stage IV abdominal cancer. Ms. Wright was held over at UVA for several weeks, during which time such treatment as could be provided, given her condition, was rendered.
140. Ms. Wright returned to FCCW, and was admitted to the Infirmary, on or about April 12, 2012. She passed away two days later.
141. The fate encountered by prisoners Darlene White and Jeanna Wright, a described herein, almost certainly awaits additional FCCW prisoners if corrective action is not undertaken promptly to remedy the clear deficiencies in the nature and the extent of the medical care the facility provides.
142. Absent immediate corrective action, FCCW will continue to subject the named plaintiffs and the members of the class they seek to represent to further undue pain and suffering and the possibility of premature death in deliberate indifference to these prisoners’ serious medical needs.
CLASS ACTION ALLEGATIONS 143. The named plaintiffs bring this action for themselves individually and on behalf of all others similarly situated, pursuant to the Eighth Amendment to the United States Constitution and 42 U.S.C. § 1983. 144. The named plaintiffs seek to represent a class consisting of all prisoners who currently reside or will reside in the future at FCCW and who have sought, currently seek or will seek medical care while residing at FCCW. They seek certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure in order to represent a class of persons requesting
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declaratory and injunctive relief to terminate the ongoing course of conduct on the part of the defendants that is depriving the named plaintiffs and the class members of their constitutional rights to adequate medical care, and to enjoin the policies and practices adopted and implemented by the defendants that result in the deprivation of those rights.
145. Approximately 1,200 women are incarcerated at FCCW on a day-to-day basis. The proposed class is, accordingly, so numerous that the joinder of all class members is impracticable.
146. All FCCW prisoners comprising the proposed class are equally subject to the actual or potential adverse impacts on their physical health and mental and emotional well-being resulting from the long-standing and on-going pattern and practice of systemic unconstitutional acts and omissions on the part of the defendants described in this Complaint. Thus, common questions of law and fact exist as to all class members. Those common questions include, but are not necessarily limited to: (i) whether defendants systematically provide inadequate medical care to the prisoners residing at FCCW; (ii) whether defendants’ acts and/or omissions in the provision of or failure to provide medical care at FCCW reflect deliberate indifference to the serious medical needs of the prisoners residing at FCCW; (iii) whether defendants’ provision of inadequate medical care on a systemic basis has placed the prisoners residing at FCCW at an unreasonable risk of suffering new or worsening physical injury, illness, mental anguish, emotional distress and the prospect of premature death; and (iv) whether defendants have violated the rights of the prisoners residing at FCCW to be free from cruel and unusual punishment as proscribed by the Eight Amendment?
147. The named plaintiffs’ claims are typical of the claims of the proposed class as a whole. The named plaintiffs are individual prisoners at FCCW suffering from an array of serious
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medical problems and reflecting a range of serious health care needs that are typical of prisoner populations in general and the prisoner population at FCCW in particular. The named plaintiffs and the proposed class they seek to represent have suffered direct injuries, and will continue to be directly injured, due to the defendants’ unlawful and unconstitutional pattern and practice of providing inadequate medical care at FCCW.
148. The named plaintiffs will fairly and adequately represent the interests of the proposed class. They have no interests separate from or in conflict with those of the class as a whole and seek no relief other than the declaratory and injunctive relief which is sought on behalf of the entire class. The named plaintiffs are represented by competent legal counsel with substantial experience in complex civil rights litigation matters, including class actions.
149. The defendants have acted, or failed and/or refused to act, on grounds that apply generally to the proposed class, such that final injunctive and declaratory relief is appropriate with respect to the class as a whole.
CLAIM FOR RELIEF (Declaratory And Injunctive Relief Pursuant To The Eighth Amendment to the U.S.
Constitution and 42 U.S.C. § 1983) 150. The named plaintiffs incorporate by reference, as though fully restated herein, the allegations set forth in Paragraphs 19 through 149 above. 151. Defendants’ deliberate indifference to the named plaintiffs’ serious medical needs causes unavoidable physical pain and suffering, mental anguish, emotional distress, the deterioration of their health and an undue risk of premature death which, for some women at FCCW has, upon information and belief, already occurred. 152. Defendants’ policies, practices, acts and/or omissions constitute and reflect deliberate indifference to the serious medical and health care needs of the prisoners residing at FCCW and violate the Cruel and Unusual Punishment Clause of the United States Constitution,
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which is applicable to the Commonwealth of Virginia and those acting on its behalf under color or state law pursuant to the Fourteenth Amendment to the Constitution.
153. Defendants’ policies, practices, acts and/or omissions have placed or will place the named plaintiffs and the members of the proposed class they seek to represent at an unreasonable risk of suffering new or worsening serious medical illnesses, injuries and harm.
154. As a proximate cause of defendants’ unconstitutional policies, practices, acts and/or omissions in regard to the provision of inadequate medical care at FCCW, the named plaintiffs and others similarly situated have suffered, are currently suffering and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury and the substantially increased risk of premature death. No adequate, readily available and complete remedy at law exists to address defendants’ wrongful conduct as described herein. The declaratory and injunctive relief sought herein is necessary to prevent new, on-going and future injury.
PRAYER FOR RELIEF WHEREFORE, the named plaintiffs respectfully pray that this Court: a. Issue an order certifying this action to proceed as a class action pursuant to
Fed. R. Civ. P. 23(a) and 23(b)(2). b. Approve the undersigned to serve as class counsel pursuant to Fed. R. Civ.
P. 23(a)(4) and 23(g). c. Issue a judgment declaring that defendants’ policies, practices, acts and/or
omissions as described herein are unlawful and violate plaintiffs’ rights under the Constitution and laws of the United States; d. Preliminarily and permanently enjoin defendants, their subordinates, agents, employees, representatives and all others acting or purporting to act in concert
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e.
f. g. DATED:

with them or on their behalf from subjecting plaintiffs to the unlawful and unconstitutional treatment described herein, and issue such injunctive orders as are necessary and/or appropriate to preclude such conduct on an ongoing basis; Maintain ongoing supervisory jurisdiction of this matter in order to monitor and enforce the defendants’ full and continuing compliance with the injunctive relief ordered herein; Award plaintiffs their reasonable attorneys’ fees and litigation costs pursuant to 42 U.S.C. § 1988 and other applicable law; and Grant all such other and further relief as this Court may deem necessary and/or appropriate in the interests of justice. January 22, 2013
Respectfully submitted,

/s/ Brenda E. Castañeda Alex R. Gulotta, VSB No. 37097 (alex@justice4all.org) Abigail Turner, VSB No. 74437 (abigail@justice4all.org) Brenda Castañeda, VSB No. 72809 (brenda@justice4all.org) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 (434) 977-0553
and
Theodore A. Howard (admitted pro hac vice) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000
and
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Case 3:12-cv-00036-NKM-BWC Document 39 Filed 02/06/13 Page 46 of 46 Pageid#: 441 Philip Fornaci (admitted pro hac vice) Deborah Golden (admitted pro hac vice) D.C. PRISONERS’ PROJECT OF THE WAHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000 Attorneys for Plaintiffs
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 Case 3:12-cv-00036-NKM Document 58 Filed 07/15/13 Page 1 of 47 Pageid#: 733

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, BOBINETTE D. FEARCE, )

MARGUERITE RICHARDSON and

)

REBECCA L. SCOTT,

)

Prisoners residing at FLUVANNA

)

CORRECTIONAL CENTER FOR WOMEN,

)

Route 250 West,

)

Troy, VA 22974,

)

)

Individually, and on behalf of all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

) Case No. 3:12-cv-00036-NKM

) Sr. Judge Norman K. Moon

HAROLD W. CLARKE

) Magistrate Judge B. Waugh Crigler

Director

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

A. DAVID ROBINSON

)

Chief of Corrections Operations

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

FREDERICK SCHILLING

)

Director of Health Services

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

6900 Atmore Drive

)

Richmond, VA 23261-6963,

)

)

and

)

)

Case 3:12-cv-00036-NKM Document 58 Filed 07/15/13 Page 2 of 47 Pageid#: 734

PHYLLIS A. BASKERVILLE

)

Warden

)

FLUVANNA CORRECTIONAL CENTER

)

FOR WOMEN

)

Route 250 West

)

Troy, VA 22974,

)

)

and

)

)

ARMOR CORRECTIONAL HEALTH

)

SERVICES, INC.

)

4960 S.W. 72nd Ave.

)

Suite 400

)

Miami, FL 33155,

)

)

and

)

)

PAUL C. OHAI, M.D.

)

Former Medical Director

)

FLUVANNA CORRECTIONAL CENTER

)

FOR WOMEN

)

Route 250 West

)

Troy, VA 22974,

)

)

and

)

)

Corizon Health, Inc.

)

105 Westpark Drive

)

Suite 200

)

Brentwood, TN 37027

)

)

Serve: CT CORPORATION

)

4701 Cox Road, Suite 301

)

Glen Allen, VA 23060-6802,

)

)

and

)

)

Mark Militana, M.D.

)

Medical Director

)

FLUVANNA CORRECTIONAL CENTER

)

FOR WOMEN

)

Route 250 West

)

Troy, VA 22974,

)

)

Defendants.

)

)

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Case 3:12-cv-00036-NKM Document 58 Filed 07/15/13 Page 3 of 47 Pageid#: 735
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs Cynthia B. Scott, Bobinette D. Fearce, Marguerite Richardson and Rebecca L. Scott (collectively, “the named plaintiffs”), for themselves individually and on behalf of a class of additional unnamed plaintiffs similarly situated, submit this Second Amended Complaint seeking declaratory and injunctive relief against defendants Harold W. Clarke, John M. Jabe, Frederick Schilling, Phyllis A. Baskerville, Armor Correctional Health Services, Inc., Paul C. Ohai, M.D., former Medical Director of the Fluvanna Correctional Center for Women (“FCCW”), Corizon Health, Inc. and Mark Militana, M.D., current Medical Director of FCCW (collectively “defendants”). The named plaintiffs hereby allege, on the basis of their personal knowledge, information and belief, as follows:
NATURE OF THE CASE 1. This is an action brought by the named plaintiffs, prisoners residing at FCCW, a facility of the Commonwealth of Virginia Department of Corrections, located in Troy, Virginia, seeking declaratory and injunctive relief to address and remedy the failure of FCCW, on a systemic, pervasive and on-going basis, to provide its residents with medical care sufficient either in nature or in extent to satisfy the minimum standards mandated by the Eighth Amendment to the United States Constitution. 2. The named plaintiffs seek preliminary and permanent relief from defendants’ knowing and intentional failure, acting under color of State law, to provide the named plaintiffs and all other similarly-situated women residing at FCCW with medical care adequate to protect them from substantial existing, on-going and/or imminent physical injury, illness and undue risk of premature death in deliberate indifference to their rights under the Eighth Amendment to be free from cruel and unusual punishment.
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JURISDICTION AND VENUE 3. The named plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, because it arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3), because it seeks to redress the deprivation, under color of State law, of rights, privileges and immunities secured to the named plaintiffs and the members of the class they seek to represent by the Constitution and laws of the United States. This Court has authority to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure. 4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), because one or more of the defendants reside in this judicial district, and because all or a substantial part of the events, acts and/or omissions giving rise to the named plaintiffs’ claims occurred in this judicial district.
PARTIES A. Plaintiffs 5. Plaintiff Cynthia B. Scott, a 42-year old African-American woman, has been incarcerated at FCCW since 2003. Ms. Scott, who is serving a sentence that expires in 2040, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, sarcoidosis, a potentially life-threatening disease involving cellular inflammation in and around vital organs such as her lungs, liver, spleen and pancreas, as well as her eyes. Ms. Scott also suffers from a potentially life-threatening pulmonary embolism. 6. Plaintiff Bobinette D. Fearce, a 60-year old African-American woman, was first incarcerated at FCCW in 1998 upon its opening, after eleven years of imprisonment at Goochland Correctional Center for Women. Ms. Fearce, who is serving a sentence that may
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expire in or about 2017, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, degenerative cervical spine and disc disease, carpal tunnel syndrome affecting both of her wrists, chronic severe pain in multiple parts of her body, incontinence due to a weak and failing bladder, and temporomandibular joint disorder resulting in a misaligned left jaw.
7. Plaintiff Marguerite Richardson, a 56-year old Caucasian woman, has been incarcerated at FCCW since 1998. Ms. Richardson, who is serving a sentence that will expire between 2030 and 2042, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, high blood pressure and poor circulation, Hepatitis C, a large growth underneath her right ribcage which has yet to be definitively diagnosed, intense and chronic pain in her lower back, right hip and right leg, ankle and foot believed to be associated with either degenerative disc disease, sciatica and/or arthritis, and MRSA, a highly-contagious form of bacterial infection.
8. Plaintiff Rebecca L. Scott, a 29-year old Caucasian woman, has been incarcerated at FCCW since 2000. Ms. Scott, who is serving a sentence that expires in 2015, is afflicted with a broad array of serious health problems and physical ailments including, but not necessarily limited to, profound deafness, a recurring, extremely painful deformed toenail on the big toe of her right foot and disabling chronic back pain attributable to misalignment of bones adjacent to her spine.
B. Defendants 9. Defendant Harold W. Clarke is the Director of the Commonwealth of Virginia Department of Corrections (“VDOC”). As such, Mr. Clarke is the legal custodian of all prisoners sentenced to periods of incarceration by the courts of Virginia for felony offenses, and is responsible for the safe, secure and humane housing and treatment of those prisoners,
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including the plaintiffs. VDOC retains a nondelegable duty under the Constitution and laws of the United States and of the Commonwealth of Virginia to ensure that the medical care provided to prisoners residing in its correctional facilities meets or exceeds applicable constitutional minimum standards.
10. Defendant A. David Robinson is the Chief of Corrections Operations of VDOC. In that capacity, Mr. Robinson, upon information and belief, exercises general supervisory authority over VDOC’s provision of medical care services to prisoners incarcerated in VDOC correctional facilities.
11. Defendant Frederick Schilling is the Director of Health Services of the VDOC. In that capacity, Mr. Schilling, upon information and belief, exercises direct day-to-day supervisory authority over the provision, under contract, of medical care services to prisoners incarcerated in VDOC correctional facilities by defendant Armor Correctional Health Services.
12. Defendant Phyllis A. Baskerville is an employee of VDOC and has served as the Warden of FCCW since sometime in 2011. In this capacity, Ms. Baskerville is directly responsible at all times for the safe, secure and humane housing and treatment of all prisoners residing at FCCW, including the plaintiffs.
13. Defendant Armor Correctional Health Services, Inc. (“Armor”), is a for-profit corporation, organized and existing under the laws of the State of Florida and maintaining its principal place of business in Miami, Florida. On or about November 1, 2011, Armor assumed contractual responsibilities, pursuant to modifications to an existing contract between Armor and VDOC -- Contract DOC-05-024-Armor -- to provide all medical, dental and mental health services needed to afford adequate and necessary health care to all prisoners residing at certain VDOC correctional facilities, including FCCW. In this capacity, Armor replaced and/or
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succeeded Corizon Health, Inc., formerly known as PHS Correctional Healthcare (formerly known as Prison Health Services, Inc.) (“PHS”), which provided healthcare services to prisoners residing at FCCW, subject to the terms and conditions of Contract DOC-05-024-PHS, from April 19, 2006 and continuously thereafter until these obligations were transferred to and assumed by Armor in October 2011. Armor’s position as contractual provider of medical and mental health services of FCCW terminated as of on or about May 1, 2013.
14. Armor, in succeeding to and assuming PHS’ rights and obligations as the contractual provider of healthcare services at FCCW, and retaining essentially the same medical staff as was previously employed by PHS, effectively adopted and ratified PHS’ prior policies and customs with respect to the systemic failure to provide necessary and appropriate medical care and/or provision of deficient medical care to prisoners at FCCW, as its own.
15. Defendant Paul C. Ohai, M.D., an employee and/or agent of Armor, assumed responsibilities as the Medical Director of FCCW, upon information and belief, on or about July 2, 2012. He filled the position previously occupied by David MacDonald, M.D., an employee and/or agent of Armor and, upon information and belief, the Medical Director at FCCW as an employee or agent of PHS, and subsequently Armor, since 2008. Dr. MacDonald’s responsibilities, policies and practices remained consistent over the course of his employment at FCCW by both companies. Defendant Ohai, his predecessor Dr. MacDonald, and the employees and/or agents of Armor working under his or Dr. MacDonald’s supervisory authority, were directly responsible for the provision of adequate, appropriate and humane medical care services to all prisoners residing at FCCW, including the named plaintiffs, as contemplated by the Constitution and laws of the United States and of the Commonwealth of Virginia, as well as in
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accordance with Armor’s contractual obligations to VDOC. Upon information and belief, Dr. Ohai is no longer employed at FCCW.
16. Defendant Corizon Health, Inc. (“Corizon”), is a for-profit corporation, organized and existing under the laws of Delaware and maintaining its principal place of business in Brentwood, TN. On or about May 1, 2013, at VDOC’s election, Corizon re-assumed contractual responsibilities, succeeding Armor, to provide all medical and mental health services needed to afford adequate and necessary health care to all prisoners residing at certain VDOC correctional facilities, including FCCW.
17. Upon information and belief, Corizon, in succeeding to and assuming Armor’s rights and obligations as the contractual provider of healthcare services at FCCW, retained essentially the same medical staff as was previously employed by Armor, and has effectively adopted and ratified Armor’s prior policies and customs with respect to the systemic failure to provide necessary and appropriate medical care and/or provision of deficient medical care to prisoners at FCCW as its own.
18. Defendant Mark Militana, M.D., an employee and/or agent of Corizon, assumed responsibilities as the Medical Director of FCCW, upon information and belief, on or shortly after May 1, 2013. He filled the position previously occupied by defendant Dr. Ohai and by Dr. MacDonald.
19. Each of the individual defendants is sued in his or her official capacity. At all times relevant to the events, acts and/or omissions alleged in this Complaint, the individual defendants, Armor and Corizon, individually and collectively, have acted under color of State law, pursuant to their authority and responsibilities as officials, employees and/or agents of the Commonwealth of Virginia.
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FACTUAL BACKGROUND A. FCCW And Its Medical Services 20. FCCW, which was conceived, designed and constructed specifically for the purpose of serving as a “model” women’s prison, opened in 1998. The facility houses approximately 1,200 prisoners (about forty percent of the total number of women prisoners in Virginia), a majority of whom are 35 years of age or older and are serving median sentences of 20 years. FCCW was designed to include a 68,000-square foot medical building in which medical, dental and mental health services are provided for the women comprising FCCW’s own general population. The medical unit also serves incarcerated women with serious medical problems residing in other VDOC facilities, who are transferred to FCCW for the purpose of receiving a heightened level of care. 21. Subject to the supervision and oversight of defendant Dr. Militana and, previously, Drs. Ohai and MacDonald, the former Medical Directors at FCCW, Corizon employs or, during times relevant to the causes of action and claims for relief set forth in this lawsuit, employed a Medical Staff sometimes consisting of Donald A. Remaly, M.D., another general practice physician, and approximately 10-to-15 additional health care providers including, upon information and belief, registered nurses, licensed practical nurses and certified nursing assistants. 22. These registered nurses, licensed practical nurses and certified nursing assistants perform the initial “intake” examinations of prisoners upon their arrival at FCCW, the purpose of which is to review each prisoner’s medical history and make specific notations regarding the prisoner’s existing condition(s), medical needs (if any) and pending course of treatment, in order to determine what each such prisoner might need by way of continuing attention and/or treatment during her term of incarceration at FCCW.
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23. The nurses also preside over and administer the “Sick Call” process at FCCW. At Sick Call, prisoners complaining of health problems, having submitted a written request for care, are screened and evaluated for the purpose of determining their need for an appointment with a physician. Absent waivers which are virtually never granted, each prisoner is charged a $5.00 “co-pay” fee for each Sick Call visit. The nurses staffing Sick Call are also authorized to administer first aid and dispense, in limited quantities, non-prescription pain medication.
24. Under the Sick Call protocol, persons lacking the medical training and experience of physicians -- certified physicians’ assistants or registered nurses -- are delegated the responsibility and authority to determine whether a prisoner will be scheduled for an appointment with a doctor and what, if any, treatment short of a doctor’s appointment an ailing prisoner will receive. Only upon referral to a doctor will the prisoner be accorded the opportunity to have an appropriately-trained medical professional determine whether she merits or requires enhanced treatment or care by a specialist outside of FCCW.
25. Apart from the routine Sick Call process, prisoners may submit a request for care on an emergency basis; however, FCCW, upon information and belief, virtually never honors prisoners’ requests for emergency medical care, regardless of the true circumstances or the prisoners’ actual needs.
26. The nursing staff also has responsibility for distributing prescription medication to prisoners through the “Pill Line” process in which, often under extremely harsh conditions -such as having to stand outdoors in a single-file line at 3:00-4:00 a.m., exposed to rain, snow, severe cold or excessive heat on a nightly basis -- the prisoners are ostensibly provided with the medication dictated by their various ailments and conditions. With disturbing regularity, however, prisoners may stand in the Pill Line for one hour or more, under harsh circumstances,
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only to receive the incorrect prescription, or to be told that their medication was forgotten back at the Infirmary by the nurses, or is simply unavailable because delivery of the medication to FCCW is late arriving or was never even ordered in the first place because the prescription was misplaced or the order was not placed due to “oversight”.
B. The Named Plaintiffs’ Individual Medical Issues And Claims 27. Plaintiff Cynthia Scott, who is 42 years of age, suffers from asthma and a host of other serious medical problems. In connection with a complaint that she was having great difficulty breathing, she was seen at Sick Call in August 2009 for what was originally believed to be chronic bronchitis. 28. By the time Ms. Scott was seen at Sick Call for a follow-up examination regarding what was thought to be bronchitis in September 2009, she had begun to experience a lack of appetite and significant weight loss. No cause was determined for these symptoms. 29. Based upon her complaints that she was experiencing hot and cold sweats, continued breathing problems and a continuing significant weight loss, Dr. Remaly saw Ms. Scott in February 2010. He told her that her symptoms were the result of the on-set of the early stages of menopause. He also stated that her body was rejecting protein and that she needed a higher-protein diet. Although a blood test confirmed the existence of a protein deficiency, nothing was done by FCCW to alter or improve her diet. 30. During the first six months of 2010, Ms. Scott, without either dieting or exercising, lost more than 40 pounds, in regard to which early menopause and a protein deficiency were the only explanations offered by FCCW Medical Staff. 31. On or about June 18, 2010, in response to Ms. Scott’s ongoing complaints of severe shortness of breath, a chest x-ray was taken. A nurse-practitioner informed Ms. Scott that the x-ray showed the presence of large masses in each of her lungs, which the nurse stated were
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probably cancer. Not until then was Ms. Scott sent to the University of Virginia Medical Center (“UVA”) for CT-scans, which were conducted on July 7 and July 14, and a lung biopsy on July 19, 2010.
32. On August 5, 2010, a UVA pulmonologist told Ms. Scott that she has sarcoidosis -- a disease in which abnormal collections of chronic inflammatory cells (granulomas) form as nodules within the chest cavity which, in some cases, may cause respiratory failure and death -rather than lung cancer. The specialists prescribed 40 mgs. per day of Prednisone for 30 days, followed by a reduction in the dosage to 20 mg./day for an additional 60 days, after which she was to have a follow-up examination.
33. Upon Ms. Scott’s return to FCCW, Dr. MacDonald, without any consultation with her UVA specialists, summarily reduced her prescription to 30 mg./day of Prednisone (rather than 40 mg./day) for the first 30 days followed by 20 mg./day for the next 40 days (instead of 60 days).
34. On December 16, 2010, Ms. Scott had her follow-up appointment with her specialists at UVA. This was the first time that she or her doctors learned that Dr. MacDonald had departed from the prescribed course of medication that the UVA doctors had established in August. The UVA specialists placed Ms. Scott back on 10 mg./day of Prednisone for three months, and specifically instructed that FCCW carry out the prescription as ordered, without deviation.
35. Ms. Scott’s UVA Health System medical records for October 27, 2011 report that on that day, her UVA doctors were hampered in their attempt to conduct a six-minute treadmill test to assess the adverse impact of the sarcoidosis on her lung capacity due to the fact that her
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legs were bound in shackles that the FCCW correctional officer accompanying her to UVA refused to remove.
36. Ms. Scott has repeatedly sought, and continues to seek, specific information regarding the implications of her sarcoidosis diagnosis, the course of future treatment that is to be followed for her illness and her long-term prognosis. FCCW Medical Staff has ignored or, in any event, failed to respond to her inquiries.
37. In late November 2011, Ms. Scott began to experience severe swelling in her lower left leg. Dr. Remaly thought that the swelling might be attributable to birth-control pills (Nortrel) that Ms. Scott had been taking regularly over the course of many years, and ordered that she discontinue the medication. Upon information and belief, Ms. Scott was taken off of her Nortrel prescription in January 2012.
38. Despite termination of the birth-control pills, the severe swelling did not abate, but rather got worse, and Ms. Scott initiated a series of Sick Call visits, sometimes two or three per week, seeking treatment. Upon information and belief, no meaningful treatment was provided.
39. On or about the evening of May 1, 2012, with the swelling so extreme that Ms. Scott lost feeling in her toes and felt that her lower leg was likely to burst open, correctional officers in Ms. Scott’s building summoned an FCCW nurse to examine Ms. Scott in the Nurse’s Station. The nurse immediately called and left a message for Dr. MacDonald, who came to examine Ms. Scott the next morning at 6:15 a.m. After a brief examination, Dr. MacDonald advised Ms. Scott that the swelling was due to arthritis and that she should put on a pair of support stockings to alleviate the problem.
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40. Certain that arthritis was not the cause of the extreme, painful swelling, Ms. Scott placed a call to her mother, who then contacted Dr. MacDonald by telephone to express her serious concerns regarding her daughter’s condition. Dr. MacDonald assured Ms. Scott’s mother that Ms. Scott was being “well taken care of”.
41. On May 3, 2012, Ms. Scott was seen by Dr. Remaly for a regularly-scheduled appointment regarding her sarcoidosis. Dr. Remaly rejected Dr. MacDonald’s conclusion that Ms. Scott’s swollen leg was attributable to arthritis, and ordered that she be sent to UVA for an ultrasound of her leg and foot. The following day, Dr. MacDonald again examined Ms. Scott and informed her that someone would come to FCCW on May 8, 2012 to perform the ultrasound.
42. Not until late in the afternoon on May 10, 2012 was the ultrasound on Ms. Scott finally conducted. The examiner told Ms. Scott that she “didn’t like what she saw” and ordered that Ms. Scott be taken immediately to the Emergency Room at UVA Medical Center. An ultrasound performed upon Ms. Scott’s arrival at UVA confirmed that she had a blood clot in her left leg, and a subsequent x-ray examination established that fragments of the blood clot had traveled to her lungs. She was immediately admitted to UVA for an overnight stay and started on injections of Levenox, an anticoagulant.
43. After receiving Levenox injections in her stomach at 9:00 p.m. on May 10 and at 9:00 a.m. the following morning, Ms. Scott was released from UVA and returned to FCCW on the afternoon of May 11, 2012. She was told that she was to continue to receive abdominal injections of Levenox twice a day for seven days, with blood work to be performed at regular intervals to ensure that the medication was working properly, and that after seven days, she would transition to Coumadin (Warfarin), an alternative anticoagulant available in pill form which she would likely need to take for the rest of her life.
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44. Upon her arrival back at FCCW, a nurse, at Dr. MacDonald’s direction, removed from Ms. Scott’s possession the copy of the written directions explaining her intended course of treatment that had been provided to her at UVA. Ms. Scott did not receive the Levenox injection at 9:00 p.m. on the evening of May 11 that she was suppose to receive. At 4:00 a.m. Pill Line on May 12, she was informed by a nurse that there were no orders regarding any injections she was to be provided. Ms. Scott returned to her cell and immediately prepared and submitted an Emergency Medical Grievance. It was returned, signed by the same nurse Ms. Scott had spoken to at Pill Line, indicating that her prescribed medication would have to be ordered. At the 9:45 a.m. Pill Line later on May 12, Ms. Scott received one 120 mg. injection.
45. In the following days, Ms. Scott received only one 120 mg. injection of Levenox based on Dr. MacDonald’s instructions, rather than two injections of 100 mgs. each as had been expressly ordered by her treating physician at UVA, causing Ms. Scott grave concern that potentially life-threatening blood clots in her system are not being treated properly. Finally on May 15, she began to receive injections of 100 mg. of Levenox twice per day.
46. Ms. Scott has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to her serious medical problems and needs.
47. Plaintiff Bobinette Fearce, who is 60 years of age, was diagnosed with a degenerative disc disease and had surgery in 2001, which was performed by Dr. Gregory Helm, a neurosurgeon at UVA. The surgery involved the fusing of two vertebrae in the front of her neck. Although extended physical therapy was prescribed for Ms. Fearce to assist her rehabilitation
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from this surgery, Ms. Fearce was provided with limited physical therapy only irregularly, during the first three months after her return to FCCW, which was then discontinued entirely.
48. In late 2007, Ms. Fearce began to experience a loss of strength in her hands, as well as a loss of balance when standing, and was returned to UVA for a series of diagnostic examinations and tests by the neurological specialists on staff there, including an MRI in December 2007 and a CT-scan in March 2008.
49. The tests showed that Ms. Fearce is suffering from further degenerative disc disease at several different levels of her cervical spine, which was of a “significant” degree of severity in some areas and “mild” in others. The UVA specialists also determined that Ms. Fearce has “moderately severe right and mild left” carpal tunnel syndrome.
50. In regard to treatment of Ms. Fearce’s bilateral carpal tunnel syndrome, Dr. Helm prescribed that she be provided wrist splints, and noted that if the splints were ineffective, carpal tunnel release, a form of corrective surgery, should be the next step.
51. Ms. Fearce was supplied with wrist splints by FCCW in 2008, but they were ineffective in relieving her symptoms and she continues to suffer severe pain and weakness in her arms and wrists and numbness in her fingers, even when her wrists are immobilized.
52. In mid-2009, Ms. Fearce continued to complain of severe chronic pain and discomfort in her neck, back and wrists associated with the degenerative cervical spinal disease and carpal tunnel syndrome from which she suffers. Dr. Remaly, rather than referring Ms. Fearce back to her UVA specialists for further examination and treatment (including the carpal tunnel release surgery that had previously been prescribed), decided to treat Ms. Fearce’s condition by providing her with injections of Prednisone and hydrocortisone to her wrists and
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back on a twice-monthly basis. The injections, which commenced in August 2009, proved ineffective to relieve Ms. Fearce’s pain and other symptoms within a few months’ time.
53. Despite Ms. Fearce’s repeated pleas to be sent back to UVA for further examination by Dr. Helm and/or other neurological specialists with the training and experience to assess her condition and devise an effective (or, at a minimum, a more effective) course of treatment, FCCW Medical Staff has refused to refer Ms. Fearce back to UVA for specialized care, until February or March 2012. As a result, the extent of the further progression of Ms. Fearce’s degenerative spine disease, and its possible adverse impact upon Ms. Fearce’s overall health and well-being, was not assessed from March 2008 until four years later.
54. In the meantime, FCCW disregarded Ms. Fearce’s need for an altered course of medication and treatment, including physical therapy, to address her constant, chronic pain. In response to one complaint by Ms. Fearce regarding the inadequacy of her prescribed pain medications, Dr. MacDonald refused to either change Ms. Fearce’s medication or increase her dosage, stating that “[t]here are risks to taking long-term Tylenol and non-steroidal antiinflammatory drugs (NSAIDS). We try to limit the use of these, in order to avoid the risks of liver and kidney disease.” Dr. MacDonald’s solution was to advise Ms. Fearce to purchase the over-the-counter form of Tylenol from the FCCW Commissary. FCCW, however, limits the amount of medication a prisoner may purchase at the Commissary at any one time to twelve packets, each containing two 325-mg. tablets, and also limits the frequency with which such purchases may be made to once every 10 days-to-two weeks, even assuming that Ms. Fearce possessed sufficient financial resources to purchase her own pain medications on a regular basis, given her limited ability to perform wage-earning jobs within the Prison in light of her myriad physical ailments. These factors combine to eliminate any realistic possibility that Ms. Fearce
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could effectively offset her deficient course of prescription medication for severe chronic pain through the purchase of packets of over-the-counter Tylenol tablets, at her own expense, from the Commissary.
55. Due to a chronic bladder problem dating from sometime in 2004, Ms. Fearce suffers from incontinence, and must wear adult diapers at all times. In late 2006, Ms. Fearce was sent to UVA for an examination, and a specialist diagnosed “pneumaturia and stress incontinence of urine” relating to “moderate to marked descensus of the bladder.” Surgery involving the insertion of a “mid-urethral sling” was prescribed. However, upon Ms. Fearce’s return to FCCW, Dr. MacDonald informed her that she is “too old” to be afforded the surgery that would correct her bladder condition.
56. Dr. MacDonald issued Ms. Fearce a Medical Profile -- a written authorization prepared by the Medical Staff allowing an prisoner some form of special accommodation for specific medical reasons -- allowing her to use the bathroom on an as-needed basis, and to utilize the laundry facilities to wash her clothes on an as-needed basis if they became soiled, in recognition of her incontinence. However, Dr. MacDonald later arbitrarily rescinded the Medical Profile upon the demand of FCCW Correctional Staff, despite no change in Ms. Fearce’s medical condition or resulting physical needs, based solely upon alleged security concerns that have never been explained to Ms. Fearce or articulated in writing insofar as she is aware.
57. As a result of the rescission of the Medical Profile granting Ms. Fearce bathroom and laundry privileges, Ms. Fearce experienced frequent occasions on which she wet herself and soiled her clothing or bedding, which she was not permitted to wash until her next regularlyscheduled access to the laundry, whenever that might be. These incidents caused Ms. Fearce to
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experience extreme personal discomfort, embarrassment and humiliation, and subjected her to ridicule by other prisoners.
58. Ms. Fearce suffers from temporomandibular joint (TMJ) disorder, a condition that began to cause her serious problems in 2007-08. Ms. Fearce’s jaw is misaligned upon closure due to the disorder. It causes her, on a recurring basis, to inadvertently bite herself on the inner wall of her left cheek, as well as her tongue. Repeated accidental bites to the same areas of her inner cheek and tongue have resulted in cuts and bruises that never have the chance to heal and have become ulcerated, making it extremely painful for Ms. Fearce to eat, as well as to talk. Ms. Fearce has repeatedly sought appointments with FCCW Medical Staff and/or Dental Staff seeking treatment for the cuts, bruises and open sores in her mouth attributable to her TMJ disorder.
59. At an appointment conducted on or about June 3, 2010, Dr. Remaly told Ms. Fearce that she requires corrective dental treatment to address her TMJ disorder and misaligned bite, without which the internal damage to her cheek and tongue will recur indefinitely.
60. On June 15, 2010, Ms. Fearce was seen for examination by Dr. Wood, a dentist on staff at FCCW. Dr. Wood advised Ms. Fearce that she needs braces, and oral surgery, to permanently correct her TMJ disorder, but that neither of these measures would be provided to Ms. Fearce during her incarceration at FCCW because they are too expensive.
61. Dr. Wood devised a multi-step strategy intended to partially mitigate the continuing adverse effects of Ms. Fearce’s TMJ problem. Dr. Wood indicated that she would schedule an appointment to fill cavities that were present in certain of Ms. Fearce’s teeth, and took a molded impression of Ms. Fearce’s teeth in order to create a permanent tooth guard for
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Ms. Fearce to wear to protect against accidental bites after the cavities were filled. Dr. Wood also used a file to dull the sharp edges of some of Ms. Fearce’s teeth, in order to make inadvertent bites to her inner cheek and tongue less penetrating, painful and harmful.
62. Subsequent to the mid-June 2010 appointment with Dr. Wood, a follow-up appointment for the filling of Ms. Fearce’s cavities was provided. However, the filing of the sharp edges of Ms. Fearce’s teeth by Dr. Wood left those teeth painfully sensitive to heat, cold and any hard substances Ms. Fearce attempts to chew. Meanwhile, Ms. Fearce’s TMJ disorder remains untreated, and her misaligned teeth continue to cause extremely painful accidental biting of her inner cheek and tongue, aggravating prior cuts and sores and creating new ones for which FCCW Medical Staff’s sole advice is that she gargle with salt water in an attempt to ward off infections.
63. Due to the host of medical problems with which she is afflicted including, in particular, a chronically stiff and sore neck and back attributable to her degenerative disc disease, as well as arthritis in her left hip and right knee, Ms. Fearce must often walk with a cane. This is significantly more difficult due to the numbness and weakness in her hands and wrists caused by her bilateral carpal tunnel syndrome.
64. In recognition of Ms. Fearce’s mobility challenges and in order to provide her with better access to the Infirmary and the locations where meals are served and Ms. Fearce takes continuing education classes, Ms. Fearce was provided a Medical Profile in or about November 2009, indicating that she should be transferred to a one-person cell in Building 2, a centrally-located housing unit at FCCW.
65. Ms. Fearce was residing in general population in a double cell in Building 3, awaiting the transfer to a single cell in Building 2 dictated by her Medical Profile when, as of
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June 29, 2010, Ms. Fearce was transferred, at the direction of FCCW Correctional Staff, to a cell in Building 5, the residential unit located farther away from the various locations to which Ms. Fearce must walk on a frequent basis than any other housing unit at FCCW.
66. Ms. Fearce complained about her transfer to Building 5, on the grounds that the action was in direct contradiction of her Medical Profile, and that walking from Building 5 to the Infirmary, meals, classes, etc., was causing her undue pain and harm. Her Medical Profile for her transfer to a single cell in Building 2 was summarily rescinded by FCCW Medical Staff based on alleged security considerations raised by Correctional Staff bearing no relationship to any legitimate medical justification. Not until September/October 2010 was Ms. Fearce finally transferred from Building 5 to Building 2, where she resided until recently.
67. Bathroom access is critical for prisoners like Ms. Fearce who have medical problems that make it difficult, if not impossible, for them to wait long periods of time to use the bathroom. In addition to the incontinence from which Ms. Fearce suffers, as addressed above, she also must take laxatives several times a week that assist her in relieving herself. A recent change in internal policy at FCCW, involving the implementation of a nighttime bathroom “list”, means that during overnight hours when Ms. Fearce calls the guard in the building in which she resides to indicate her need to use the bathroom, her name is placed at the end of a list of other prisoners who asked to use the bathroom before her. At times, the wait has been as long as fiftyfive minutes, causing Ms. Fearce great emotional distress and/or in having to relieve herself in her diaper. To compound the problem, after years of having a Medical Profile providing her with the opportunity to reside in a single cell in which Ms. Fearce was permitted to change her diaper and to change out of soiled clothing, when necessary, in privacy, Ms. Fearce’s Medical Profile was revoked and she was then reassigned to a double cell that she had to share with a
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roommate. Ms. Fearce’s incontinence and need to utilize diapers has not changed, and the justification for her prior Medical Profile for a single cell remains the same. Dr. MacDonald, in response to Ms. Fearce’s grievance, stated that she did not qualify for a single cell.
68. By letter dated June 13, 2012, directed to defendant Warden Baskerville by undersigned counsel from the Legal Aid Justice Center on Ms. Fearce’s behalf, Ms. Fearce’s serious concerns regarding the adoption of the nighttime bathroom list policy and the revocation of her Medical Profile for a single cell were raised and immediate corrective action on the part of FCCW was requested. Although a prompt response to the letter was sought, Warden Baskerville never responded to the June 13 letter.
69. Meanwhile, Ms. Fearce was suddenly transferred to a Ward in the Infirmary shared with five other women, where she was confined without access to any recreational activities or the opportunity to attend religious services or education classes. Based upon several comments by Dr. MacDonald to Ms. Fearce referencing “the June 13 letter”, it appears that Ms. Fearce was retaliated against for having attempted to raise legitimate concerns with respect to the nature and quality of her medical care at FCCW through the assistance of legal counsel. Further to this point, Ms. Fearce, upon information and belief, was released from the Infirmary and returned to general population and a double cell in mid-August 2012, contrary to her prior Medical Profile and continuing legitimate needs for a single cell.
70. Ms. Fearce has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to Ms. Fearce’s serious medical problems and needs.
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71. Plaintiff Marguerite Richardson, who is 56 years of age, suffers from high blood pressure and poor circulation, for which use of the prescription drug Lasix has been directed. The drug has a diuretic effect on Ms. Richardson, causing her to have frequent need to use the bathroom.
72. Ms. Richardson has repeatedly requested FCCW Medical Staff to issue her a Medical Profile granting her bathroom privileges on an as-needed basis, but these requests have been rejected on the grounds that the Profile would not be honored by Correctional Officers in any event and that bathroom access is a “security issue” subject to the sole discretion of the Warden. Ms. Richardson has been subjected to disciplinary charges on multiple occasions when she has used the bathroom without prior permission in order to avoid urinating on herself.
73. Ms. Richardson has been told that she has Hepatitis C, an infectious disease affecting the liver, caused by the Hepatitis C virus (HCV), which is often asymptomatic. Since learning that she carries the HCV, Ms. Richardson has repeatedly requested that she be provided information regarding its effects, and treatment to the extent treatment is appropriate. FCCW Medical Staff has generally disregarded Ms. Richardson’s numerous inquiries. She is completely uncertain as to what, if any, adverse impact HCV may be having on her health and well-being.
74. Ms. Richardson has a large mass located under her right ribcage that causes her severe pain and discomfort. At various times, a nurse told Ms. Richardson that the mass might be a hernia of her liver, and Dr. Remaly suggested that the mass might be attached to her stomach wall. In response to Ms. Richardson’s requests for tests to establish a definitive diagnosis and a plan for treatment, Dr. MacDonald wrote a note on February 21, 2011, stating: “If you have a hernia, surgeons will usually not repair. If it is protruding (bulging) and you
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cannot reduce it, let me know.” FCCW Medical Staff has failed to make any further response to Ms. Richardson’s continuing efforts to find out the nature of her condition and how it might be treated through the date on which this action was commenced.
75. Ms. Richardson suffers from intense chronic pain in her lower back, and shooting pains and numbness through her right hip and down her right leg, ankle and foot. Although FCCW Medical Staff have suggested to Ms. Richardson at various times that she has degenerative disc disease, sciatica and/or arthritis, Ms. Richardson remains uncertain of the cause of the severe pain she is experiencing and has repeatedly requested examination and testing. In February 2011, Dr. MacDonald responded that Ms. Richardson’s problem “has been determined to be lumbar pain with a loss of sensation to part of [her] lower extremities,” and stated that “no further tests are needed at this time.” Apart from this statement, which merely describes her reported symptoms, Ms. Richardson’s entreaties have not received any response.
76. In the Spring of 2011, Ms. Richardson sought medical attention through Sick Call visits for a number of small, painful sores or boils on the back of her lower left leg. Ms. Richardson was prescribed a variety of antibiotics, including Keflex, to treat the sores, but they did not go away and continued to cause her pain through the Summer and Fall.
77. In January 2012, Ms. Richardson’s severely swollen, discolored left heel was examined by Dr. MacDonald, and fluid was extracted for analysis. Ms. Richardson’s prescribed dosage of Keflex was increased, but she was not provided any medication for pain. The test results were not revealed to her.
78. Ms. Richardson continued to experience severe swelling and extreme pain in her lower leg and foot. Emergency medical grievances she filed seeking treatment and pain medication were disregarded.
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79. Finally, at a Sick Call visit in May 2012, one of the FCCW nurses called up the results of Ms. Richardson’s prior test on a computer in the Infirmary and informed her that she had Methicillin-resistant Staphylococcus aureus (MRSA), a highly contagious form of bacterial infection which may be fatal if left untreated. Only after this disclosure was Ms. Richardson’s medication changed by Dr. Remaly from Keflex to Bactrim, which has begun to gradually treat the infection in an effective manner.
80. Ms. Richardson has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to Ms. Richardson’s serious medical problems and needs.
81. Plaintiff Rebecca Scott, who is 29 years of age, has experienced, over several years, a recurring problem with an extremely painful deformed toenail on the big toe of her right foot, which causes her great discomfort and makes it very difficult for her to walk on a day-today basis.
82. Ms. Scott has put in numerous requests for Sick Call visits to have the toe examined, and has seen Dr. Remaly for the problem. Despite her extreme pain and discomfort, however, Dr. Remaly has told Ms. Scott that there is nothing wrong with the toenail, and he has refused to provide her with any treatment other than to trim the nail so close to the skin that her toe itself has been cut and become infected, making her condition even more painful.
83. After a nurse suggested that Ms. Scott contact Dr. MacDonald, she did so in November 2010, requesting that he arrange for her to see a specialist who could remove the toenail permanently. In a written response to her request, Dr. MacDonald stated: “Toe nail fungus is frustrating. Some people have realized that putting oil/tabasco sauce or hair products
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under the toe nail kills the fungus. I have had some success on the outside with Vick’s VaporRub/tabasco sauce/etc.”
84. Ms. Scott contacted Dr. MacDonald again, pointing out that her problem is not “toe nail fungus” but rather a deformed toenail that she wanted permanently removed. In midDecember 2010, Dr. MacDonald responded as follows: “Toe nail fungus is a frustrating problem. Your toe nail was removed. When a nail is removed, it may grow back crooked. Repeated toe nail removal may not help. If you continue to have problems, [contact me again].”
85. Subsequent to this exchange, Ms. Scott’s on-going attempts to obtain effective and/or specialized care for her deformed toenail condition have drawn no response from FCCW Medical Staff. The extreme pain and discomfort in her foot continue.
86. For several months, Ms. Scott requested a referral to an outside ear/nose/throat (ENT) specialist that FCCW Medical Staff consistently refused to honor. Ms. Scott’s hearing, which is already substantially diminished due to her profound deafness, is adversely affected each time her tonsils become infected and inflamed, a condition she experiences several times a year.
87. Dr. Remaly has told Ms. Scott that she needs to have her tonsils removed to prevent the recurring tonsillitis from which she suffers; however, Dr. MacDonald proclaimed that he “does not believe in” removal of the tonsils by surgery. As a result, Ms. Scott’s requests to be seen by an outside ENT specialist were summarily rejected up to the date on which this action was commenced.
88. Ms. Scott is also afflicted by a recurring back problem, which she experiences when misaligned bones in her back rub against her spine. She is essentially rendered immobile when the condition flares up.
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89. Despite clear documentation in Ms. Scott’s medical records reflecting that she is asthmatic, Dr. Remaly prescribed Mobic (Meloxicam), a nonsteroidal anti-inflammatory drug which is contra-indicated for individuals with asthma, as the medical treatment for her back. Even after Ms. Scott had an adverse reaction upon her initial use of Mobic, Dr. Remaly declined to change the prescription. Only as a result of the intervention of a nurse practitioner on staff at FCCW was Ms. Scott taken off Mobic and prescribed Prednisone for her injured back.
90. Ms. Scott has repeatedly requested a regimen of physical therapy to address her back issues; all such requests have been disregarded.
91. Ms. Scott has suffered, and continues to suffer, physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ past, present and on-going acts and omissions reflecting their deliberate indifference to her serious medical problems and needs.
OTHER AFFECTED PERSONS 92. Patricia Knight, originally a named plaintiff in this action who is 55 years of age, allegedly suffered a stroke while incarcerated at the Piedmont Regional Jail in or about April 2005 which resulted in her temporary loss of weight-bearing capacity in her legs as well as the loss of strength and gripping capacity in her hands. In 2006, Ms. Knight was transferred to FCCW so that she could receive rehabilitative care. Upon information and belief, Ms. Knight was released from incarceration at FCCW in or about September 2012. 93. Because Ms. Knight was unable to walk at the time of her arrival at FCCW, she was immediately admitted to the Infirmary following her intake screening. Ms. Knight remained in the Infirmary for 11 months. During that time, she was not provided with any physical therapy. As a result, the loss of strength and gripping capacity in Ms. Knight’s hands essentially became permanent. Some of the weight-bearing capacity returned to Ms. Knight’s legs over
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time despite FCCW’s failure to provide any physical therapy. However, her ability to walk remains severely compromised due to her difficulties in holding and supporting a walker or a cane because of the weakness in her hands.
94. In 2006, Ms. Knight began to suffer from severe neck pain, for which she sought medical attention. Ms. Knight had to request repeated Sick Call visits over a period of nearly six months before she was finally referred for an appointment with a doctor, who acknowledged her need for specialized treatment. Ms. Knight, on or about December 1, 2006, had surgery at the Medical College of Virginia (“MCV”) to remove the C3 and C4 disks from her neck in order to relieve the severe pain she was experiencing.
95. After this surgery, Ms. Knight’s treating specialists at MCV prescribed physical therapy to assist her rehabilitation upon her return to FCCW. But, again, FCCW failed to provide it.
96. Ms. Knight has routinely recurring severe neck and back pain, but received no chronic care while at FCCW for her on-going condition. Instead, she was repeatedly required to submit Sick Call requests seeking medical attention, and, per FCCW policy, was charged a $5.00 “co-pay” for each individual Sick Call visit. This imposed an extreme economic hardship upon Ms. Knight given her physical incapacity to work in order to earn money.
97. Upon information and belief, when Ms. Knight arrived at FCCW at 2006, she was taking Ranexa, a prescription medication used to treat chronic chest pain (angina). Thereafter, FCCW discontinued Ms. Knight’s Ranexa prescription without explanation. A doctor at MCV involved in treating Ms. Knight in connection with her spinal surgery in 2007 advised her that she needed to resume taking Ranexa, but upon her return to FCCW, Dr. MacDonald rejected this instruction on the grounds that the medication was too expensive.
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98. Ms. Knight, in late 2010, requested physical therapy to address extreme pain in her knees attributable to arthritis. Dr. MacDonald responded that Ms. Knight’s knee pain was due to excessive body weight, and that exercise and weight loss would reduce pressure on Ms. Knight’s joints without any need for physical therapy. Dr. MacDonald ignored the fact that the constant weakness and pain in Ms. Knight’s legs and her inability to walk without a walker or a cane essentially precluded her from exercising with sufficient frequency and vigor to cause meaningful weight loss. Meanwhile, Ms. Knight’s repeated requests for pain medication stronger than over-the-counter Tylenol for her chronic and severe knee, back and neck pain have been either ignored or refused by FCCW Medical Staff.
99. Ms. Knight, while residing at FCCW, suffered physical pain and discomfort, and needless uncertainty giving rise to extreme mental anguish and emotional distress, due to defendants’ acts and omissions reflecting their deliberate indifference to Ms. Knight’s serious medical problems and needs.
C. FCCW’s Systemic Failure To Provide Constitutionally-Adequate Medical Care
100. The named plaintiffs incorporate by reference, as though fully restated herein, the allegations set forth in Paragraphs 1 through 99 above.
101. The experiences reflected by and embodied in the named plaintiffs’ respective individual allegations provide only a partial indication of the systemic, pervasive nature of the deficiencies characterizing FCCW’s provision of and/or failure to provide medical care services to the women prisoners residing there. Given FCCW’s status as the facility, within the VDOC system, to which women prisoners with the most serious medical problems are sent for a purportedly heightened level of care, the critical implications of the systemic deficiencies characterizing the provision of medical care at FCCW are both apparent and disturbing.
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102. The pervasive shortcomings in FCCW’s provision of medical care to its residents can be broadly viewed as attributable to two principal considerations: (i) deviations from the accepted and appropriate standard of care on the basis of cost considerations driven by Armor’s and Corizon’s respective motivation to minimize their operating expenses and thereby maximize their corporate profits; and (ii) deviations from the accepted and appropriate standard of care on the basis of purported security concerns devoid of any genuine and legitimate penological justification. Neither of these considerations can validate or justify defendants’ past, present and on-going acts and omissions constituting and/or reflecting deliberate indifference to plaintiffs’ serious medical problems and needs.
103. Under the provisions of VDOC Operating Procedure No. 866.1, “Offender Grievance Procedure,” defendant Schilling, as Regional Ombudsman, is the individual to whom grievances initiated by prisoners residing at Fluvanna with respect to failure to provide medical care or provision of deficient medical care are or at relevant times were directed for ultimate review and disposition when such grievances have not been resolved to the satisfaction of the prisoner at earlier stages in the grievance process. As a result, Mr. Schilling has or, in contravention of relevant policy and sound correctional practice, has purposefully avoided, direct personal knowledge of the substance of prisoner grievances describing the pervasive nature of the deficient medical care to which the named plaintiffs and other prisoners similarly situated have been subjected at FCCW, as set forth in this Complaint.
104. Under the provisions of VDOC Op. Proc. No. 866-1, defendant Baskerville, as FCCW Warden, reviews and determines prisoner grievances with respect to failure to provide medical care or provision of deficient medical care in those instances in which a prisoner’s complaint regarding the nature or extent of medical care she has (or has not) received is not
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resolved to the prisoner’s satisfaction on an informal basis. As a result, Ms. Baskerville has or, in contravention of relevant policy and sound correctional practice, has purposefully avoided, direct personal knowledge of the substance of prisoner grievances describing the pervasive nature of the deficient medical care to which the named plaintiffs and other prisoners similarly situated have been subjected at FCCW, as set forth in this Complaint.
105. As a result of its officials’ and employees’ direct participation in and awareness of the review process involving FCCW prisoners’ hundreds of grievances recounting FCCW’s systemic provision of deficient medical care and/or outright failure to provide appropriate medical care, without requiring FCCW and Armor and/or Corizon to adopt and implement corrective measures, VDOC has adopted and engaged in a custom or practice of deliberate indifference to plaintiffs’ serious medical problems and needs.
1. Deviations From The Appropriate Standard Of Care Based On Cost Considerations (a) Deficient Sick Call Process
106. Upon information and belief, Corizon maintains lower operating expenses, and thus increases its profits under its contract with VDOC, by retaining and employing licensed practical nurses (LPNs) and certified nursing assistants (CNAs) -- rather than physicians or registered nurses -- to make critical medical judgments. LPNs and CNAs administer the Sick Call process and make threshold determinations as to whether prisoners complaining of medical problems should be referred to a doctor for examination and treatment. The lack of training, expertise and experience that is characteristic of these lower-cost paraprofessionals creates a Sick Call process in which determinations regarding prisoners’ serious (or potentially serious) medical problems and needs are made by individuals unqualified to perform this function, with severe consequences for those prisoners subject to incorrect judgments.
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107. The plights of plaintiff Cynthia Scott, as well as former plaintiff Patricia Knight, illustrate the serious implications for FCCW prisoners of a Sick Call process administered by under-qualified individuals employed on the basis of considerations of expense reduction and profit maximization rather than fundamental medical competency. Ms. Scott was seen at Sick Call for many months during which she suffered from breathing difficulties, catastrophic weight loss for which there was no explanation, and a protein deficiency in regard to which no modification of her diet was implemented before she was finally referred for testing that revealed she is afflicted with sarcoidosis, a serious, potentially life-threatening disease. Ms. Knight suffered through a repeated, fruitless series of Sick Call visits spanning six months before she was finally referred to a doctor concerning her severe, chronic neck pain. That doctor, upon finally examining Ms. Knight, immediately acknowledged her need for specialized treatment, resulting in belated spinal disk-removal surgery.
108. Cynthia Scott revisited the potentially life-threatening consequences of the woefully inadequate Sick Call process more recently in connection with the blood clot causing severe swelling and extreme pain in her lower left leg, in connection with which she had Sick Call visits from January to May 2012 before her circumstances became so dire that an ultrasound revealing the presence of the clot was finally ordered and conducted. Likewise, plaintiff Marguerite Richardson’s MRSA was dismissed as insignificant, or actively concealed, for months by those staffing Sick Call, before she was finally informed that she was afflicted with this highly-contagious bacterial infection and began to receive proper treatment. During that time period, Ms. Richardson’s MRSA posed a serious health risk not only to herself, but to other FCCW prisoners with whom she routinely came in contact.
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109. Defendants’ failure, or refusal, to expend the resources required to provide a Sick Call process that is staffed by properly trained and experienced medical personnel competent to adequately and properly assess the nature and extent of FCCW prisoners’ actual or potentially serious medical problems and refer them accordingly for appropriate attention and treatment constitutes deliberate indifference to serious medical needs.
(b) Failure/Refusal To Acknowledge, Examine, Diagnose And Treat Serious Or Potentially Serious Prisoner Medical Problems
110. Upon information and belief, under the provisions of the contract between Corizon and VDOC, the greater the amount of time and attention that Corizon devotes to the medical needs of a particular prisoner, the greater the resulting expense, thus adversely affecting Corizon’s profits.
111. As a result, prisoners residing at FCCW have repeatedly been subjected to situations in which FCCW Medical Staff have failed, or refused, to invest the time or effort required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns.
112. The circumstances of plaintiffs Marguerite Richardson and Cynthia Scott are illustrative. Ms. Richardson, who has a bulging mass underneath her right ribcage, which causes her severe pain and discomfort, has tried for months to persuade FCCW Medical Staff to perform tests, determine a diagnosis and prescribe treatment for this growth, all to no avail. She was still awaiting an appropriate examination, diagnosis and treatment when this action was commenced. Similarly, despite repeated complaints over a period of more than nine months during which she suffered chest pains, shortness of breath, night sweats and catastrophic weight loss, FCCW Medical Staff offered Ms. Scott nothing but a diagnosis of “protein deficiency” in her diet (in regard to which no corrective action was taken) and an assessment that she was experiencing
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“early-stage menopause”. Only in June 2010 was Ms. Scott finally provided with chest x-rays that ultimately led to further testing and a diagnosis of sarcoidosis -- a serious, potentially lifethreatening disease. Subsequent to this diagnosis, FCCW Medical Staff have steadfastly refused to inform Ms. Scott regarding the long-term implications of the disease from which she suffers.
113. Defendants’ failure, or refusal, to acknowledge, examine, diagnose and treat the serious, or potentially serious, medical problems of FCCW prisoners in an appropriate and timely manner, as reflected by the experiences of Ms. Richardson and Ms. Scott, constitutes deliberate indifference to serious medical needs.
(c) Failure/Refusal To Refer Prisoners For Needed Specialized Care
114. Upon information and belief, under the provisions of the contract between Corizon and VDOC, each referral of an FCCW prisoner to UVA or other outside medical facilities for specialized evaluation or care increases the operating expenses for which Corizon is responsible and thus decreases its profits. As a result, FCCW prisoners have repeatedly been subjected to situations in which FCCW Medical Staff has failed, or refused, to make such referrals, despite the prisoners’ clearly apparent and often previously documented need for specialized care.
115. The circumstances of plaintiffs Bobinette Fearce and Rebecca Scott are illustrative. The progression of Ms. Fearce’s degenerative spine disease, and its possible adverse effects upon her overall health and well-being, were not measured or assessed by the specialists at UVA who previously treated her between March 2008 and February/March 2012. FCCW Medical Staff’s steadfast refusal to send Ms. Fearce back to UVA despite the acknowledged nature of her condition and her repeated requests during that four-year period caused her to suffer extreme, on-going pain. Likewise, the refusal of FCCW Medical Staff to refer Rebecca
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Scott to an outside ENT specialist over an extended period of time prior to date this action was commenced, despite clear acknowledgement by Dr. Remaly of her need for a tonsillectomy in order to prevent the recurring throat infections that adversely affect her already-diminished hearing, had no possible legitimate medical justification.
116. Defendants’ failure, or refusal, in the face of a recognized need, to refer FCCW prisoners for specialized medical care at outside facilities constitutes deliberate indifference to serious medical needs.
(d) Failure/Refusal To Carry Out Specialists’ Prescribed Courses Of Treatment
117. Upon information and belief, under the provisions of the contract between Corizon and VDOC, the greater the expense absorbed by Corizon in regard to carrying out the courses of treatment prescribed by outside specialists in order to address the illnesses of FCCW prisoners that they have examined and diagnosed, the greater the adverse impact upon Corizon’s profits.
118. As a result, FCCW Medical Staff routinely disregards the courses of treatment prescribed for prisoners by outside specialists who have examined them, in favor of treatment that is less expensive, but also less efficacious, in responding to the serious medical conditions and severe pain from which the prisoners suffer.
119. The circumstances of plaintiff Bobinette Fearce are illustrative. As described more fully above, Ms. Fearce suffers from severe chronic pain in her wrists, which, as a result of a CT-scan taken in March 2008 by UVA specialists, was diagnosed as attributable to “moderately severe right and mild left” carpel tunnel syndrome. The specialists concluded that if the wrist splints they prescribed for Ms. Fearce proved ineffective to treat the condition, carpel tunnel release, a surgical procedure, should be employed.
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120. However, when wrist splints failed to address or remedy Ms. Fearce’s severe, chronic wrist pain, FCCW Medical Staff, rather than refer Ms. Fearce back to UVA for the carpel tunnel release surgery that had already been prescribed, unilaterally initiated an alternative course of treatment, involving the administration of steroid injections. The injections of Prednisone and hydrocortisone have been ineffective to remedy Ms. Fearce’s severe, on-going wrist pain. FCCW Medical Staff, notified by Ms. Fearce that the alternative (and significantly cheaper) course of treatment upon which they settled was not working, took no further action to address, much less resolve, Ms. Fearce’s chronic wrist pain until she was finally sent back to UVA for follow up in February/March 2012.
121. The circumstances of plaintiff Cynthia Scott are likewise illustrative. As reviewed above, Ms. Scott’s UVA specialists prescribed 40 mgs. per day of Prednisone for 30 days, followed by a reduced dosage of 20 mgs. per day for 60 days, in order to treat her sarcoidosis, in August 2010. However, immediately upon her return to FCCW, Dr. MacDonald unilaterally reduced the prescribed course of medication to 30 mgs. of Prednisone (rather than 40 mgs.) for 30 days, followed by 20 mgs. per day for 40 days (rather than 60 days). As a result, Ms. Scott was deprived of the beneficial effects on her condition that her specialists determined would result from the course of treatment they prescribed but FCCW repudiated. Likewise, Dr. MacDonald unilaterally reduced the dosage of anti-coagulant medication Ms. Scott was prescribed to receive following the discovery that she had a blood clot in her leg, fragments of which broke off and migrated to her lungs – posing a threat to her continued well-being.
122. Defendants’ failure, or refusal, in the face of specific instructions provided by outside medical specialists, to carry out the courses of treatment prescribed for plaintiffs and
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other similarly-situated FCCW prisoners, constitutes deliberate indifference to serious medical needs.
(e) Failure/Refusal To Provide Prisoners With Effective Medication For Severe, Chronic Pain
123. Upon information and belief, under the provisions of the contract between Corizon and VDOC, the greater the expense absorbed by Corizon in providing FCCW prisoners experiencing severe, chronic pain attributable to their serious health problems with effective pain medication in adequate amounts to relieve the prisoners’ suffering, the greater the adverse impact upon Corizon’s profits.
124. As a result, FCCW Medical Staff, as a matter of routine, intentionally withholds from FCCW prisoners’ pain medication of a nature and extent sufficient to provide the prisoners with relief from the severe, chronic pain they are experiencing.
125. The circumstances of plaintiff Bobinette Fearce and former plaintiff Patricia Knight, respectively, are illustrative. Although, as described more fully above, Ms. Fearce suffers from a host of chronic conditions, including but not limited to, degenerative disc disease affecting her spine and carpal tunnel syndrome in both of her wrists, Dr. MacDonald has repeatedly refused to increase Ms. Fearce’s dosage of pain medication or to provide her with more effective alternative pain medication and has, instead, essentially instructed Ms. Fearce to fend for herself by suggesting that she can supplement her pain treatments by purchasing overthe-counter Tylenol from FCCW Commissary at her own expense. Similarly, FCCW Medical Staff repeatedly refused to provide Ms. Knight with anything more than over-the-counter Tylenol for her chronic and severe knee, back and neck pain attributable to degenerative disc disease and arthritis.
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126. Defendants’ failure, or refusal, in the face of recognized suffering and need, to provide plaintiffs and other similarly-situated FCCW prisoners with pain medication sufficient in nature and extent to relieve the prisoners’ severe, chronic pain constitutes deliberate indifference to serious medical needs.
2. Deviations From The Appropriate Standard Of Care Based Upon Non-Medical “Security” Considerations
127. In recognition of the particular circumstances and needs encountered by plaintiffs and other similarly-situated FCCW prisoners as a result of the medical conditions from which they suffer, FCCW Medical Staff has occasionally issued Medical Profiles allowing certain special accommodations to these prisoners. However, the Medical Profiles have been arbitrarily revoked on the basis of purported “security” considerations raised by FCCW Correctional Staff, which lack either a medical or a legitimate penological justification.
128. As a result, plaintiffs and other similarly-situated FCCW prisoners have been arbitrarily deprived of the marginally greater degree of personal comfort, dignity and relief from pain, embarrassment and humiliation that were afforded by the accommodations established by their Medical Profiles.
129. The circumstances of plaintiffs Bobinette Fearce and Marguerite Richardson, respectively, are illustrative. Although, as described more fully above, Ms. Fearce suffers from a chronic incontinence condition in regard to which FCCW Medical Staff has refused to consider allowing her to have corrective surgery, Ms. Fearce was, temporarily, issued a Medical Profile that established her entitlement to use the bathroom and the laundry facilities on an as-needed basis in recognition of her condition. However, despite the lack of any change in Ms. Fearce’s condition, or her resulting physical and hygienic needs, Dr. MacDonald summarily rescinded the Medical Profile solely because FCCW Correctional Staff asked him to do so. Ms. Fearce’s
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Medical Profile for transfer to a single cell in Building 2, which was issued in recognition of her serious mobility limitations, was revoked under similar circumstances, without any medical or penological justification. Ms. Richardson, whose medication required for treatment of her high blood pressure and poor circulation causes her to experience a constant need for access to a bathroom, was denied a Medical Profile granting her bathroom privileges on an as-needed basis by FCCW Medical Staff on the grounds that FCCW Correctional Staff would not recognize or honor such a Profile even if one were provided.
130. Defendants’ failure, or refusal, to grant and/or maintain special accommodations dictated by prisoners’ needs specifically attributable to their medical conditions on the basis of arbitrary “security” considerations having neither a medical nor a legitimate penological justification constitutes deliberate indifference to serious medical needs.
3. Unnecessary And Preventable Fatalities Attributable To FCCW’s Systemic Failure To Provide Constitutionally-Adequate Medical Care Have Already Occurred And Will Continue To Occur
131. Upon information and belief, the systemic practices and procedures originally adopted and implemented by PHS, and subsequently ratified and implemented by Armor and Corizon, respectively, have resulted in deaths which provision of appropriate medical care could and should have prevented. Such practices and procedures embody and reflect deliberate indifference to the serious medical needs of prisoners residing at FCCW and continue to pose an increased and undue risk of premature death to the named plaintiffs and the members of the class they seek to represent.
132. One such instance of unnecessary and preventable death involves the case of Darlene White, a 47-year old African-American woman and a long-time FCCW prisoner, who died in the Infirmary in the early morning hours of December 21, 2011.
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133. Upon information and belief, sometime during the afternoon of December 20, 2011, Ms. White, an acknowledged diabetic, entered the Infirmary, complaining of a severe headache, nausea and diarrhea. Upon information and belief, after Ms. White experienced a wave of nausea and vomited near the control “bubble” in the Infirmary, a nurse gave her a shot of medication intended to relieve the nausea and sent Ms. White back to her housing unit.
134. Upon information and belief, in the early evening of the same day, Ms. White returned to the Infirmary, again complaining of severe headache and nausea. She was seated in a chair, inside the “F-Ward” segment of the Infirmary, rocking back and forth, holding her head and moaning in pain. A nurse checked Ms. White’s blood sugar and found that it was radically elevated above normal levels.
135. Upon the nurse’s instruction, Ms. White laid down on a bed in Room 2-F, continuing to hold her head, rocking and moaning in severe pain. A short time later, Ms. White requested help from another prisoner in the room, indicating that she was sick and in great pain. As the other prisoner was leaving the room to call for help, Ms. White again began vomiting. A short while later, a nurse entered the room and asked Ms. White a series of questions, none of which she answered. Ms. White did, however, say that she had defecated on herself and needed to be changed. The nurse indicated that she would get someone to clean up Ms. White’s vomit and change her, and left the room. The nurse returned some time later and spread a paper gown over the place on the floor where Ms. White had vomited. The nurse also placed a paper cup and a bedpan on the bed where Ms. White was laying, instructing Ms. White to use the cup and the bedpan if she needed to urinate or had diarrhea. Although Ms. White was barely conscious by this time, the nurse stated that she wanted to measure Ms. White’s fluid intake. However, the
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nurse never checked Ms. White’s vital signs, or examined or otherwise touched Ms. White in any way.
136. Upon information and belief, sometime later a different nurse entered Room 2-F and set about inserting an IV intake terminal into Ms. White’s arm. The nurse spoke to Ms. White, asked her questions, and requested Ms. White’s cooperation with respect to insertion of the IV, but Ms. White was completely non-responsive. The nurse stated that she intended to give Ms. White some IV fluids to make her feel better, but Ms. White did not react or respond. The other prisoner in the room reported that Ms. White needed to be changed, and the nurse responded “Oh. O.K.” She left the room thereafter and no one came back to clean up or change Ms. White, or to check on her condition despite her obvious non-responsiveness.
137. At about 3:15 a.m. on December 21, the other prisoner located in Room 2-F heard a ratting sound emanating from Ms. White’s throat and pushed the emergency button and told the nearby guard that Ms. White needed immediate attention. A nurse rushed into the room, yelling at Ms. White to elicit a response, but none was forthcoming. The nurse ran into the hallway and called a “Code Blue”. Although the nurses converging on the room thereafter discussed the performance of CPR, none was performed and no vital signs were measured.
138. At about 3:45 a.m., a guard instructed one of the nurses to call an ambulance. However, when the emergency response team arrived on the scene, they stayed for only a few minutes and took no action, as it was apparent that Ms. White was deceased and that no emergency existed.
139. Dr. MacDonald later entered the ward to which the prisoners who had been present in the room with Ms. White had been moved. He informed them that Infirmary personnel were “investigating” to make sure that no one on staff had caused Ms. White any
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harm, and stated that “we want to make sure that none of you are mistreated when you come here for medical care. I know that you get very good medical care here. Believe me, you do get good care.”
140. Upon information and belief, another case of unnecessary and eminently preventable death involved a prisoner named Jeanna Wright.
141. Upon information and belief, Ms. Wright complained of severe abdominal pain, accompanied by regular, sometimes daily, vaginal or rectal bleeding, for at least one year. Ms. Wright requested, paid for, and attended numerous Sick Call visits regarding her symptoms, but FCCW Medical Staff routinely assured here that she was “fine”.
142. Finally, earlier this year, Ms. Wright was seen by a doctor and referred to UVA for further examination and diagnostic testing, upon which it was discovered that she was suffering from Stage IV abdominal cancer. Ms. Wright was held over at UVA for several weeks, during which time such treatment as could be provided, given her condition, was rendered.
143. Ms. Wright returned to FCCW, and was admitted to the Infirmary, on or about April 12, 2012. She passed away two days later.
144. The fate encountered by prisoners Darlene White and Jeanna Wright, a described herein, almost certainly awaits additional FCCW prisoners if corrective action is not undertaken promptly to remedy the clear deficiencies in the nature and the extent of the medical care the facility provides.
145. Absent immediate corrective action, FCCW will continue to subject the named plaintiffs and the members of the class they seek to represent to further undue pain and suffering and the possibility of premature death in deliberate indifference to these prisoners’ serious medical needs.
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CLASS ACTION ALLEGATIONS 146. The named plaintiffs bring this action for themselves individually and on behalf of all others similarly situated, pursuant to the Eighth Amendment to the United States Constitution and 42 U.S.C. § 1983. 147. The named plaintiffs seek to represent a class consisting of all prisoners who currently reside or will reside in the future at FCCW and who have sought, currently seek or will seek medical care while residing at FCCW. They seek certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure in order to represent a class of persons requesting declaratory and injunctive relief to terminate the ongoing course of conduct on the part of the defendants that is depriving the named plaintiffs and the class members of their constitutional rights to adequate medical care, and to enjoin the policies and practices adopted and implemented by the defendants that result in the deprivation of those rights. 148. Approximately 1,200 women are incarcerated at FCCW on a day-to-day basis. The proposed class is, accordingly, so numerous that the joinder of all class members is impracticable. 149. All FCCW prisoners comprising the proposed class are equally subject to the actual or potential adverse impacts on their physical health and mental and emotional well-being resulting from the long-standing and on-going pattern and practice of systemic unconstitutional acts and omissions on the part of the defendants described in this Complaint. Thus, common questions of law and fact exist as to all class members. Those common questions include, but are not necessarily limited to: (i) whether defendants systematically provide inadequate medical care to the prisoners residing at FCCW; (ii) whether defendants’ acts and/or omissions in the provision of or failure to provide medical care at FCCW reflect deliberate indifference to the serious medical needs of the prisoners residing at FCCW; (iii) whether defendants’ provision of
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inadequate medical care on a systemic basis has placed the prisoners residing at FCCW at an unreasonable risk of suffering new or worsening physical injury, illness, mental anguish, emotional distress and the prospect of premature death; and (iv) whether defendants have violated the rights of the prisoners residing at FCCW to be free from cruel and unusual punishment as proscribed by the Eight Amendment?
150. The named plaintiffs’ claims are typical of the claims of the proposed class as a whole. The named plaintiffs are individual prisoners at FCCW suffering from an array of serious medical problems and reflecting a range of serious health care needs that are typical of prisoner populations in general and the prisoner population at FCCW in particular. The named plaintiffs and the proposed class they seek to represent have suffered direct injuries, and will continue to be directly injured, due to the defendants’ unlawful and unconstitutional pattern and practice of providing inadequate medical care at FCCW.
151. The named plaintiffs will fairly and adequately represent the interests of the proposed class. They have no interests separate from or in conflict with those of the class as a whole and seek no relief other than the declaratory and injunctive relief which is sought on behalf of the entire class. The named plaintiffs are represented by competent legal counsel with substantial experience in complex civil rights litigation matters, including class actions.
152. The defendants have acted, or failed and/or refused to act, on grounds that apply generally to the proposed class, such that final injunctive and declaratory relief is appropriate with respect to the class as a whole.
CLAIM FOR RELIEF (Declaratory And Injunctive Relief Pursuant To The Eighth Amendment to the U.S.
Constitution and 42 U.S.C. § 1983) 153. The named plaintiffs incorporate by reference, as though fully restated herein, the allegations set forth in Paragraphs 22 through 142 above.
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154. Defendants’ deliberate indifference to the named plaintiffs’ serious medical needs causes unavoidable physical pain and suffering, mental anguish, emotional distress, the deterioration of their health and an undue risk of premature death which, for some women at FCCW has, upon information and belief, already occurred.
155. Defendants’ policies, practices, acts and/or omissions constitute and reflect deliberate indifference to the serious medical and health care needs of the prisoners residing at FCCW and violate the Cruel and Unusual Punishment Clause of the United States Constitution, which is applicable to the Commonwealth of Virginia and those acting on its behalf under color or state law pursuant to the Fourteenth Amendment to the Constitution.
156. Defendants’ policies, practices, acts and/or omissions have placed or will place the named plaintiffs and the members of the proposed class they seek to represent at an unreasonable risk of suffering new or worsening serious medical illnesses, injuries and harm.
157. As a proximate cause of defendants’ unconstitutional policies, practices, acts and/or omissions in regard to the provision of inadequate medical care at FCCW, the named plaintiffs and others similarly situated have suffered, are currently suffering and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury and the substantially increased risk of premature death. No adequate, readily available and complete remedy at law exists to address defendants’ wrongful conduct as described herein. The declaratory and injunctive relief sought herein is necessary to prevent new, on-going and future injury.
PRAYER FOR RELIEF WHEREFORE, the named plaintiffs respectfully pray that this Court: a. Issue an order certifying this action to proceed as a class action pursuant to
Fed. R. Civ. P. 23(a) and 23(b)(2).
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b. Approve the undersigned to serve as class counsel pursuant to Fed. R. Civ. P. 23(a)(4) and 23(g).
c. Issue a judgment declaring that defendants’ policies, practices, acts and/or omissions as described herein are unlawful and violate plaintiffs’ rights under the Constitution and laws of the United States;
d. Preliminarily and permanently enjoin defendants, their subordinates, agents, employees, representatives and all others acting or purporting to act in concert with them or on their behalf from subjecting plaintiffs to the unlawful and unconstitutional treatment described herein, and issue such injunctive orders as are necessary and/or appropriate to preclude such conduct on an ongoing basis;
e. Maintain ongoing supervisory jurisdiction of this matter in order to monitor and enforce the defendants’ full and continuing compliance with the injunctive relief ordered herein;
f. Award plaintiffs their reasonable attorneys’ fees and litigation costs pursuant to 42 U.S.C. § 1988 and other applicable law; and
g. Grant all such other and further relief as this Court may deem necessary and/or appropriate in the interests of justice.
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DATED: June 26, 2013

Respectfully submitted,
/s/Brenda E. Castañeda Alex R. Gulotta, VSB No. 37097 (alex@justice4all.org) Abigail Turner, VSB No. 74437 (abigail@justice4all.org) Brenda Castañeda, VSB No. 72809 (brenda@justice4all.org) Ivy A. Finkenstadt, VSB No. 84743 (ivy@justice4all.org) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 (434) 977-0553
and
Theodore A. Howard (admitted pro hac vice) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000
and
Deborah Golden (admitted pro hac vice) D.C. PRISONERS’ PROJECT OF THE WAHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000
By: /s/Brenda E. Castañeda Attorneys for Plaintiffs

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

Plaintiffs, all prisoners residing at Fluvanna Correctional Center for Women (“FCCW”),
filed an action pursuant to 42 U.S.C. § 1983 alleging that Defendants violated Plaintiffs’
constitutional rights under the Eighth Amendment to be free from cruel and unusual punishment.
Plaintiffs assert that FCCW fails to provide adequate medical care and that Defendants are
deliberately indifferent to this failure. Plaintiffs request a declaratory judgment and preliminary
and permanent injunctions ordering FCCW to provide adequate medical care to Plaintiffs and all
other similarly situated women residing at FCCW.
FCCW is a facility of the Commonwealth of Virginia Department of Corrections (the
“VDOC”). Most of the individual Defendants are VDOC employees who are being sued in their
official capacities, and on December 11, 2012, I denied the individual state employees’ motion
to dismiss pursuant to Rule 12(b)(6).1 Thereafter, on February 6, 2013, Plaintiffs’ motion for
1 The individual state employee Defendants are Harold W. Clarke, the Director of the Virginia Department of Corrections (the “VDOC”); David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling, VDOC’s Director of Health Services; and Phyllis A. Baskerville, the Warden at Fluvanna Correctional Center for Women (“FCCW”). The original complaint named “John/Jane Doe, M.D., Acting Medical Director, Fluvanna Correctional Center for Women,” and the amended complaint names “Paul C. Ohai, M.D., Medical Director, Fluvanna Correctional Center for Women.” The medical director was not a party to the individual state employee Defendants’ motion to dismiss.
(continued...)

leave to file an amended complaint was granted, and an amended complaint was filed.2 The instant motion to dismiss was filed by a single defendant, Armor Correctional Health,
Inc. (“Armor”), arguing that, because its contract with VDOC expired and that, on May 1, 2013, another provider assumed the contract to provide medical services at FCCW, Plaintiffs’ claims for injunctive and declaratory relief should be denied as moot. The new contractual provider is Corizon Health, Inc. (“Corizon”), which formerly was a contractual provider of medical services at FCCW during part of the time covered in Plaintiffs’ complaint, and subsequently the complaint was amended to add Corizon as a defendant. For the reasons stated herein, I will grant Armor’s motion to dismiss.
I. When considering a motion to dismiss for failure to state a claim upon which relief can be granted, I apply the pleading standard refined by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See also Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P. 8. The non-moving party must have alleged facts that “state a claim to relief that is plausible on its face,” i.e., facts that “have nudged their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. A claim is plausible if the complaint contains “factual
1(...continued) In denying the motion to dismiss, I determined that Plaintiffs had sufficiently alleged a systemic failure
on an on-going basis of FCCW staff and agents of the VDOC to provide medical care to women incarcerated at FCCW to satisfy the minimum standards mandated by the Eighth Amendment to the United States Constitution, and that they had sufficiently alleged that, as a result of this ongoing, systemic failure, women at FCCW have suffered and continue to suffer the adverse physical and mental effects of FCCW’s failure to provide medical care (or the provision of deficient care) in deliberate indifference to their serious medical needs. 2 As previously noted, the amended complaint identifies Paul C. Ohai as a defendant; otherwise, the amended complaint varies from the original complaint only in slight clarifications of various allegations.
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content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and if there is “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The following long-held rule still stands: “in evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the [non-moving party] in weighing the legal sufficiency of the complaint.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
II. Plaintiffs seek only declaratory and injunctive relief pursuant to the Eighth Amendment to the United States Constitution and 42 U.S.C. § 1983. Plaintiffs identify Armor as the corporate entity that is responsible for providing all medical services “needed to afford adequate and necessary health care to all prisoners residing at certain VDOC correctional facilities, including FCCW,” and state that Armor has maintained that obligation since October 2011. However, Armor’s contract with VDOC expired on April 30, 2013, and another company, Corizon, won the contract to provide such services. Therefore, according to Armor, Plaintiffs’ claims for injunctive and declaratory relief against Armor are now moot and should be dismissed.
III. Plaintiffs’ response in opposition to the motion to dismiss points out the following facts alleged in the complaint and amended complaint. During the substantial majority of the time period during which Plaintiffs’ counsel
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performed their due diligence investigation in anticipation of possibly filing this lawsuit, and during which Plaintiffs engaged in the process of exhausting the remedies potentially available to them through the administrative grievance process, the medical care provider at FCCW, pursuant to a contract with VDOC, was Prison Health Services, Inc., subsequently known as PHS Correctional Healthcare (“PHS”). On or about June 13, 2011, PHS merged with another private, for-profit provider of medical care services to prisons and jails, Correctional Medical Services, Inc., to form a new entity, Corizon. Thereafter, Corizon continued to serve as the medical care provider at FCCW under the contract between VDOC and PHS, employing the same on-site medical staff, until November 1, 2011, when Corizon was replaced in this capacity by Armor.
In succeeding to and assuming Corizon’s rights and obligations as the contractual provider of medical care services at FCCW, Armor retained essentially the same on-site medical staff as was previously employed at FCCW by Corizon. In Plaintiffs’ view, Armor “effectively adopted, ratified and continued as its own Corizon’s prior policies and practices with respect to the systemic failure to provide necessary and appropriate medical care and/or provision of deficient medical care to the plaintiffs and other similarly-situated prisoners at FCCW.”
Thus, Plaintiffs included Armor as a named Defendant when this action was commenced.3 Armor, having served as the medical care contractor for a 17-month period from November 1, 2011 to April 30, 2013, has now been replaced as the provider at FCCW by Corizon.
Plaintiffs asserts that, because the agreement is for two years, “it is apparent that as early
3 Plaintiffs did not include Corizon as a named Defendant, even though, according to Plaintiffs, Corizon is the entity which was responsible for the allegedly inadequate and deficient medical care services of which Plaintiffs complain prior to the time at which Armor assumed that role.
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as May 1, 2015 (if not sooner), Armor could yet again occupy the position of medical care provider at FCCW,” and could resume “the same pattern and practice of unconstitutional conduct for which plaintiffs are seeking relief.”
IV. A. “[F]or a controversy to be moot, it must lack at least one of the three required elements of Article III standing: (1) injury in fact, (2) causation, or (3) redressability.” Townes v. Jarvis, 577 F.3d 543. 546-547 (4th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). Article III standing – injury, causation, and redressability – must persist at every stage of the litigation, or else the action becomes moot. Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22 (1997) (citations omitted). For an injury to meet the redressability standard, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” In Re Mutual Funds Investment Litigation, 529 F3.d 207, 216-217 (4th Cir. 2009) (citing Lujan, 504 U.S. at 560-61). Here, a grant of injunctive relief against Armor to enjoin any possible, albeit remote, unconstitutional treatment in the future will not serve to redress Plaintiffs’ alleged injuries. Armor is no longer the medical provider at FCCW and is no longer providing treatment to Plaintiffs or any other inmates at FCCW. Even in light of Plaintiffs’ argument that Armor could one day again be awarded the contract to provide medical services at FCCW and injunctive relief would serve to redress that future injury, this assertion is based on pure speculation. “Any declaratory or injunctive relief ordered in” Plaintiffs’ favor “in [this] situation[] would have no practical impact on [their] rights and would not redress in any way the injury originally -5-

asserted.” Incumaa v. Ozmint, 507 F.3d 281, 287 (2007); see also Martin-Trigona v. Shiff, 702
F.2d 380, 386 (2d Cir. 1983) (“The hallmark of a moot case or controversy is that the relief
sought can no longer be given or is no longer needed.”). Because Plaintiffs are requesting
prospective relief from a Defendant who can no longer provide that relief, any judgment on the
merits as to this Defendant, Armor, would not resolve the issues in this case. See, e.g., Phillips
v. McLaughlin, 854 F. 2d 673, 677 (4th Cir. 1988) (“A request for prospective relief alone,
founded on a challenge to a regulation which no longer applies to plaintiffs, does not present an
actual case or controversy.”); Burke v. Barnes, 479 U.S. 361 (1987) (interest in “lawmaking
process” does not save legal challenge to expired statute from mootness; judicially cognizable
injury no longer exists when statute ceases to be effective); Diffenderfer v. Central Baptist
Church of Miami, Florida, Inc., 404 U.S. 412, 415 (1972) (per curiam) (action for relief only in
the form of declaration that statute was unconstitutional as applied was moot because statute had
been repealed).
B.
Citing Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000),
Plaintiffs oppose the motion to dismiss on the ground that the “voluntary cessation” exception to
the mootness doctrine applies in this case. As the Supreme Court of the United States observed
in Laidlaw,
[i]t is well settled that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite [v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)]. “[I]f it did, the courts would be compelled to leave ‘[t]he defendant . . . free to return to his old ways.’ ” Id., at 289, n. 10 (citing United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably
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be expected to recur.” United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968). The “heavy burden of persua[ding]” the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. Ibid.

528 U.S. at 189 (parallel citations omitted).

In Laidlaw, the defendant actively and voluntarily chose to come into substantial

compliance with the limitations imposed in its National Pollution Discharge Elimination System

permit, and then defendant took affirmative steps to shut down a facility. Id.

Here, however, the triggering event that renders Plaintiffs’ claims moot – but moot only

against this one Defendant, Armor – is the involuntary termination of the contract between

Armor and VDOC, and the selection of another provider by the VDOC through a competitive

bidding process. In support of Armor’s reply to Plaintiffs’ opposition, Armor has submitted the

affidavit of its Chief Operating Officer, Kenneth M. Palombo, with exhibits in support of the

affidavit. The following facts set forth therein support the conclusion that the termination of the

contract between Armor and VDOC does not arouse the voluntary cessation exception to the

mootness doctrine:

•

Armor provided medical services pursuant to its contract with the VDOC at

FCCW from November 1, 2011, to April 30, 2013, when the contract

terminated.

•

Prior to the termination of this contract, the contract for services beginning

May 1, 2013, was up for competitive bid pursuant to VDOC procurement

procedures and a Request for Proposal was issued.

•

Although Armor submitted a proposal for the current contract, Armor was

not the successful bidder and was not awarded the contract by the VDOC.

Thus, the termination of Armor’s contract had no relationship to any motive on Armor’s

part to avoid judicial review of its provision of medical care, but was rather the result of the

competitive bidding process and procedures of the VDOC. See Incumaa, 507 F.3d at 288 (state

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inmate’s First Amendment claim regarding department of corrections policy barring inmates in the maximum security unit (“MSU”) from receiving publications via mail sought declaratory and injunctive relief, but not damages, and thus was mooted upon his release from the MSU).
Armor’s cessation was not “voluntary,” and therefore it does not constitute “voluntary cessation.” Furthermore, I emphasize that the case can proceed to the merits without Armor as a defendant – as, for that matter, it formerly proceeded without Corizon as a defendant.4 This case will proceed to the merits, and neither Armor nor Corizon (nor any other medical care provider with which the VDOC may form a contract) will be “free to resume [or continue the] challenged conduct in the absence of a substantive determination.” Americans United for the Separation of Church and State v. Bd. of Education of Beechwood Ind. School Dist., 369 F. Supp. 1059, 1061 (1974) (citing Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944)).

V.

For the stated reasons, Armor’s motion to dismiss will be granted. An appropriate order

accompanies this memorandum opinion.

Entered this 4th

day of October, 2013.

4 I note that discovery from nonparties is expressly permitted by the Federal Rules of Federal Procedure.
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

Plaintiffs, all prisoners residing at Fluvanna Correctional Center for Women (“FCCW”),
filed an action pursuant to 42 U.S.C. § 1983 alleging that Defendants violated Plaintiffs’
constitutional rights under the Eighth Amendment to be free from cruel and unusual punishment.
Plaintiffs assert that FCCW fails to provide adequate medical care and that Defendants are
deliberately indifferent to this failure. Plaintiffs request a declaratory judgment and preliminary
and permanent injunctions ordering FCCW to provide adequate medical care to Plaintiffs and all
other similarly situated women residing at FCCW.
FCCW is a facility of the Commonwealth of Virginia Department of Corrections (the
“VDOC”). Most of the individual Defendants are VDOC employees who are being sued in their
official capacities, and on December 11, 2012, I denied the individual state employees’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).1 On February 6, 2013,
1 The individual state employee Defendants are Harold W. Clarke, the Director of the Virginia Department of Corrections (the “VDOC”); David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling, VDOC’s Director of Health Services; and Phyllis A. Baskerville, the Warden at Fluvanna Correctional Center for Women (“FCCW”). The original complaint named “John/Jane Doe, M.D., Acting Medical Director, Fluvanna Correctional Center for Women,” and the amended complaint named “Paul C. Ohai, M.D., Medical Director, Fluvanna Correctional Center for Women.” The medical director was not a party to the individual state employee Defendants’ motion to dismiss.

Plaintiffs’ motion for leave to file an amended complaint was granted, and an amended complaint was filed.2
On July 15, 2013, Plaintiffs were granted leave to file a second amended complaint. The second amended complaint recognized the VDOC’s transfer of responsibility, on or about May 1, 2013, for medical care services at FCCW from Armor Correctional Health Services, Inc. (“Armor”) to Corizon Health, Inc. (“Corizon”). The second amended complaint names as defendants Corizon and Mark Militana, M.D., Corizon’s on-site Medical Director at FCCW.
Armor filed a motion to dismiss, arguing that, because Armor’s contract with VDOC had expired and that Corizon (which had formerly been the contractual provider of medical services at FCCW during part of the time covered in Plaintiffs’ complaint and amended complaints) had assumed the contract to provide medical services at FCCW, Plaintiffs’ claims for injunctive and declaratory relief against Armor should be denied as moot. I granted Armor’s motion to dismiss.
Dr. Militana has now filed a motion to dismiss the second amended complaint, arguing that it “only identif[ies] him as the Medical Director at FCCW since on or after May 1, 2013,” and “make[s] no mention of any allegations of wrongdoing by” him. However, the second amended complaint expressly alleges that Corizon’s medical staff at FCCW functions “[s]ubject to the supervision and oversight of Dr. Militana” and that Corizon, under Dr. Militana’s direct supervision and oversight, has adopted and perpetuated the same pattern and practice of constitutionally deficient medical care that existed when Corizon assumed the contract from its predecessor, Armor (patterns and practices that Corizon instituted as Armor’s predecessor). As Plaintiffs seek only declaratory and injunctive relief pursuant to the Eighth Amendment to the
2 As previously noted, the amended complaint identified Paul C. Ohai as a defendant; otherwise, the amended complaint varied from the original complaint only in slight clarifications of various allegations.
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United States Constitution and 42 U.S.C. § 1983, it is appropriate that any such relief would be entered against Dr. Militana, and the motion to dismiss must be denied.
I. When considering a motion to dismiss for failure to state a claim upon which relief can be granted, I apply the pleading standard refined by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See also Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P. 8. The non-moving party must have alleged facts that “state a claim to relief that is plausible on its face,” i.e., facts that “have nudged their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. A claim is plausible if the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and if there is “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The following long-held rule still stands: “in evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the [non-moving party] in weighing the legal sufficiency of the complaint.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
II. As I have observed in previous opinions entered in this case, Plaintiffs’ complaint and amended complaints are replete with exhaustive, detailed allegations of a systemic failure on an on-going basis of FCCW medical staff and agents of the VDOC to provide medical care to the women incarcerated at FCCW that satisfies the minimum standards mandated by the Eighth Amendment to the United States Constitution. Plaintiffs have sufficiently alleged that, as a result of this ongoing, systemic failure, women at FCCW have suffered and continue to suffer
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adverse physical and mental effects from the failure to provide medical care (or the provision of

deficient care) in deliberate indifference to their serious medical needs. Although the specific

instances of deficient care (or non-existent care under circumstances in which care was clearly

needed and required) alleged as the foundation for Plaintiffs’ Eighth Amendment claims pre-date

the May 1, 2013, commencement of Dr. Militana’s tenure as Medical Director at FCCW,

Plaintiffs have expressly alleged that Corizon, under Dr. Militana’s direct supervision and

oversight, has adopted and perpetuated the same pattern and practice of deficient medical care

that existed when Corizon assumed the VDOC contract to provide medical services at FCCW.

Were the complaint to fail to state a claim against Dr. Militana, then it would necessarily

fail to state a claim against Corizon. Corizon has not raised a motion to dismiss, and nothing in

Dr. Militana’s motion suggests that Plaintiffs have failed to state a claim against Corizon. To

grant Dr. Militana’s motion to dismiss would require that I disregard Plaintiffs’ specific and

detailed allegations that Corizon, under Dr. Militana’s daily oversight and supervision, has

adopted and continues the same wrongful practices and deliberate indifference to the serious

medical needs of Plaintiffs and the entire population of prisoners at FCCW.

III.

For the stated reasons, the motion to dismiss will be denied. An appropriate order

accompanies this memorandum opinion.

Entered this 15th

day of November, 2013.

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

Plaintiffs filed a motion to compel discovery. The matter was briefed and heard and, upon finding that the Virginia Department of Corrections Defendants (the “Defendants,” or the “VDOC Defendants”)1 had improperly refused to produce documents to Plaintiffs, I granted the motion. See docket nos. 88, 89. Additionally, I granted Plaintiffs’ request, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), to recover reasonable expenses and attorney’s fees incurred in the preparation and filing of the motion to compel, and I directed Plaintiffs to file a detailed petition, which has been filed and fully briefed by the parties.
Defendants do not present any specific, substantive objections to the merits of the petition, other than to state in passing that they “do not perceive their Objections [to the motion to compel] to be so unique or so complicated that Plaintiffs were required to expend up to 16.75 hours of legal research in order to respond”; otherwise, Defendants state that, “[i]n general, VDOC Defendants do not challenge” the 45.90 hours for which Plaintiffs seek attorney’s fees, “except to state that there
1 The individual Defendants are Harold W. Clarke, Director of the Virginia Department of Corrections (the “VDOC”); A. David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling, VDOC’s Director of Health Services; and Phyllis A. Baskerville, the Warden at Fluvanna Correctional Center for Women, a facility of the VDOC.

was not anything particularly novel or difficult about Plaintiffs’ challenge to VDOC Defendants’ Objections to producing documents . . . on the basis of relevancy.” Nor do Defendants object to the reasonableness of the hourly fees claimed pursuant to the “lodestar” calculation; indeed, their response to the fee petition characterizes the fees requested as “reasonable.” Rather, Defendants assert that attorney’s fees in this matter are capped by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. However, Defendants’ invocation of the PLRA is misguided; by its own terms, the PLRA does not apply to attorney’s fees awarded as a discovery sanction pursuant to Fed. R. Civ. P. 37. Accordingly, as further elaborated herein, I will grant the petition, and I will award fees in a total amount of $15,980.00.
I. Plaintiffs’ fee petition seeks the recovery of $20,399.00 in attorney’s fees from Defendants for the preparation, submission, and argument of the motion to compel discovery, seeking the production of documents improperly withheld by Defendants. Plaintiffs base this fee amount on a “lodestar” calculation, multiplying a reasonable hourly rate by the number of hours reasonably expended, see, e.g., Eastern Assoc. Coal Corp. v. Director, OWCP, 724 F.3d 561, 569-70 (4th Cir. 2013) (citations omitted), and incorporating the twelve factors originally identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974); see also Eastern Assoc. Coal Corp., 724 F.3d at 570 n. 5 (setting forth the twelve Johnson factors, as cited in Hensley v. Eckerhart, 461 U.S. 424, 429-30 n. 3 (1983), and noting that, in accordance with Perdue v. Kenny A., 559 U.S. 542, 553 (2010), double-counting any of the twelve factors that have already been incorporated into the lodestar analysis would distort the proper weight to be accorded to those
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factors).2 Plaintiffs state that Theodore Howard, a partner with the law firm Wiley Rein LLP, and Cori
Lombard, an associate with the firm, researched and drafted Plaintiffs’ briefing of the motion. According to Mr. Howard’s Declaration, he has been engaged in the private practice of law in Washington, D.C. since 1981, that since 1989 “a significant part of [his] legal practice has involved the pro bono representation of incarcerated individuals seeking to challenge the constitutionality of various conditions of confinement pursuant to actions brought in federal courts under 42 U.S.C. § 1983.” He adds that Ms. Lombard was a summer associate at Wiley Rein LLP in 2008, during which term she contributed to the firm’s pro bono involvement in a prisoner civil rights project dealing “with Section 1983 litigation in general and prisoners’ conditions-of-confinement claims in particular,” and she joined Wiley Rein LLP as a full-time associate in January 2011.
The petition states that Mr. Howard’s standard billing rate is $640.00 per hour, and Ms. Lombard’s standard billing rate is $420.00 per hour. However, Plaintiffs seek recovery of their reasonable attorney’s fees based upon the United States Attorney’s Office for the District of Columbia’s Adjusted Matrix (the “Adjusted Matrix”). Under the Adjusted Matrix, Plaintiffs
2 The twelve factors are as follows: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Hensley v. Eckerhart, 461 U.S. 424, 429-30 n. 3 (1983) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)).
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calculate an hourly rate of $510.00 for Mr. Howard and an hourly rate of $295.00 for Ms. Lombard.3 Plaintiffs state that “a total of 100.70 hours were expended from the point at which the VDOC
Defendants’ written Objections to Plaintiffs’ Document Requests were served on July 23, 2013 through November 21, 2013, the date of the hearing on the Motion.” Plaintiffs then exclude 54.80 hours from the total, leaving 45.90 hours as time reasonably expended on researching, briefing, and arguing their motion. Of those 45.90 hours, Plaintiffs state that Mr. Howard performed 31.90 hours of work while Ms. Lombard performed 14 hours of work.
Plaintiffs ask me to consider and weigh the twelve Johnson factors when determining the reasonableness of the hourly rates for which recovery is sought. The factors that Plaintiffs specifically address are the novelty and difficulty of the question raised (Johnson factor no. 2); the customary fee for like work (Johnson factor no. 5); and the experience, reputation, and ability of the attorneys (Johnson factor no. 9). In particular consideration of the novelty and difficulty of the question raised, Plaintiffs state that, “[w]hile there is nothing necessarily either ‘novel’ or ‘difficult’ about challenging an adversary party’s refusal to respond to a discovery request on the basis of a ‘relevancy’ objection in the abstract,” the motion to compel “was not a routine undertaking” because of the complex nature of their Eighth Amendment claims, the “critically important nature of the discovery sought,” and “the VDOC Defendants’ complete failure to explain or provide support for the asserted Objections.” Plaintiffs further state that, because Defendants failed to identify any
3 The applicable rates from the Adjusted Matrix represents a reduction of $130.00, i.e., more than 20% off of Mr. Howard’s standard rate, and a reduction of $125.00, i.e., nearly 30% off of Ms. Lombard’s standard rate. In the alternative, courts routinely rely upon the Laffey Matrix when determining the reasonableness of the hourly rates charged by District of Columbia practitioners. The Laffey Matrix is based on the hourly rates allowed by the District Court in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983, aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985). Under the current Laffey Matrix, the applicable hourly rates are $771.00 for Mr. Howard, and $393.00 for Ms. Lombard – significantly higher than their standard billing rates.
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authority in support of their objections and merely “insisted that they were on ‘solid ground’ in adhering to the ‘relevancy’ Objections they interposed,” “Plaintiffs’ counsel were obligated to conduct exhaustive legal research” to support their own affirmative arguments for the motion to compel as well as “to protect against any existing decisions supportive of the VDOC Defendants’ position which the VDOC Defendants’ counsel may have declined to identify for strategic reasons.” Plaintiffs contend that such research by Mr. Howard and Ms. Lombard represented “a significant component of the time incurred” by them, and that this “could have been avoided but for the VDOC Defendants’ unprincipled and unfounded contentions – a circumstance that became clear” once Defendants’ opposition was filed, and it “includ[ed] not a single citation to any supporting caselaw.”
II. Defendants contend that, because Plaintiffs are prisoners, “this lawsuit is governed by the Prison Litigation Reform Act (‘PLRA’), 42 U.S.A. § 1997e” and, from this premise, Defendants leap to the conclusion that “the hourly rate for Plaintiffs’ attorneys’ fees is set by the PLRA.” Were the PLRA applicable, Theodore Howard’s rate would be capped at $187.50, and Cori Lombard’s rate would be capped at $123.50. See 42 U.S.C. § 1997e(d)(3) (under the PLRA, “[n]o award of attorney’s fees . . . shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 30006A of Title 18 for payment of court-appointed counsel”). However, a straightforward reading of the provisions of the PLRA cited by Defendants establishes that the PLRA fee limitations have no applicability to the fees awarded here as sanctions for Defendants’ misconduct regarding discovery. Section 1997e(d) of Title 42, regarding awards of attorney’s fees made to a prevailing party
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in an action challenging prisoners’ conditions of confinement in connection with the entry of an
order or the consummation of a settlement resulting in the grating of relief on the merits, states the
following:
(d) Attorney’s fees. (1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under [42 U.S.C. § 1988], such fees shall not be awarded, except to the extent that–
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section [42 U.S.C. § 1988] of the Revised Statutes; and
(B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
* * *
(3) No award of attorney’s fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel. . . .
Here, the attorney’s fees award sought by Plaintiff has no relationship whatsoever to the
merits-related fee award authorized pursuant to 42 U.S.C. § 1988 and specified in § 1997e(d).
Indeed, the United States Court of Appeals for the Fourth Circuit has analyzed the multi-step inquiry
that district courts must undertake when awarding fees under the PLRA, and has observed that,
[f]irst, the court must be satisfied that the plaintiff is eligible for fees under 42 U.S.C. § 1988. Prior to the enactment of the PLRA, a plaintiff in a prison conditions lawsuit obtained attorney’s fees solely through [Section] 1988. Section 1988 allows the district court to award reasonable attorneys’ fees to a prevailing party “[i]n any action or proceeding to enforce a provision of [42 U.S.C. § 1983].” 42 U.S.C. § 1988(b). “[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement.” [Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citation omitted)]; accord S–1 and S–2 v. State Bd. of Ed., 21 F.3d 49, 51 (4th Cir. 1994) (en banc).
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Alexander S. v. Boyd, 113 F.3d 1373, 1388 (4th Cir. 1997) (emphasis added). Given that discovery
is ongoing and there has been no consideration of (much less any disposition of) the merits of
Plaintiffs’ Eighth Amendment claims, Plaintiffs are not “eligible for fees under 42 U.S.C. § 1988.”
Id. On its face, § 1997e(d) of the PLRA is inapplicable to Plaintiffs’ instant petition, which seeks
attorney’s fees as a sanction for Defendants’ failure to fulfill discovery obligations.
There are only a few cases addressing this issue, but they are consistent with my finding. For
example, under similar circumstances presented in Edwin G. v. Washington, No. 97-1177, 2001 WL
196760 (C.D. Ill. Jan. 26, 2001), the court rejected the state corrections department defendants’
argument that the fee-cap provisions of the PLRA governed the fees recoverable by the plaintiffs
upon the successful prosecution of a motion to compel, reasoning that
[t]he court did not find case law, and none has been suggested by counsel, that would prevent it from allowing the plaintiffs’ attorneys to recoup their usual fees as sanctions for failure to obey the court’s discovery orders. Sanctions provide the district court with an effective means of ensuring that litigants will comply with discovery orders. The award of attorney’s fees as sanctions under Fed. Rule Civ. Pro. Rule 37(a)(4)(A) is distinct from an award that might be forthcoming under 42 U.S.C. § 1988, if the plaintiffs ultimately prevail in this suit. Sanctions are not based upon the defendants’ liability for the alleged claims. Sanctions are applied for conduct during the discovery process. Therefore, the award of attorney fees as a sanction is outside of the PRLA.
Id. at *2 (emphasis added); see also Davis v. Rouse, Civil Action No. 1:08-cv-03106, 2012 WL
3059569 at *3 (D. Md. July 25, 2012) (“Defendants’ arguments that [PLRA] rates should be used
fails because the PLRA does not apply to sanctions awards.”) (citations omitted); Beckford v. Irvin,
60 F. Supp. 2d 85, 88 (W.D. N.Y. 1999) (“The PLRA does not limit the award of attorney’s fees to
a prevailing plaintiff whose award is authorized under a statute separate from § 1988.”).4
4 To be sure, in Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002), the United States Court of Appeals for the Ninth Circuit affirmed a district court’s refusal to exempt fees incurred by the prisoner litigant’s counsel in preparing a motion to compel discovery from the PLRA fee cap. However, the discovery in Webb was
(continued...)
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Defendants are incorrect in assuming that, simply because the Plaintiffs are prisoners, the provisions of § 1997e(d) necessarily govern any and all awards of attorney’s fees made in this case. See, e.g., Armstrong v. Davis, 318 F.3d 965, 973-75 (9th Cir. 2003) (plaintiffs prevailed in prisoners’ rights action challenging California’s treatment of disabled prisoners and parolees based on claims asserted under the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), and § 1983; Court of Appeals affirmed the district court’s determination to award attorney’s fees unlimited by the PLRA fee-cap provisions where the ADA and RA claims were the principal focus of discovery, trial, and the relief granted, and both statutes contained their own fee-shifting provisions and thus did not rely upon § 1988 as the basis for the fee award); Beckford, supra, 60 F. Supp. 2d at 88 (“Looking at the plain meaning of the [PLRA], attorney’s fees are limited in cases brought by prisoners if the award of fees is authorized under [42 U.S.C.] § 1988. However, plaintiffs’ claim was also based on the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Attorney’s fees are available to the prevailing party under the ADA. The PLRA does not limit the award of attorney’s fees to a prevailing plaintiff whose award is authorized under a statute separate from § 1988.”) (citations omitted.).
In sum, the attorney’s fees sought here are discovery sanctions under Fed. R. Civ. P. 37, not an award to a prevailing party in connection with a determination of the merits of this case pursuant to §§ 1983 and 1988, and the fee provisions of the PLRA are inapplicable.
4(...continued) undertaken in the postjudgment phase of the case and was sought by the plaintiff in furtherance of enforcement of the judgment previously reached in his favor and was but one element of an omnibus petition for fees subject to recovery pursuant to Section 1988. Id. at 837-40 (emphasis added).
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III. “When . . . the applicant for a fee has carried [its] burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be [a] reasonable fee . . . .” Blum v. Stenson, 465 U.S. 886, 897 (1984); see also Perdue, supra, 559 U.S. at 552; Eastern Assoc. Coal Corp., supra, 724 F.3d at 570. Plaintiffs, consistent with these authorities, have arguably carried their burden here. As fully elaborated in the petition and its supporting declarations and exhibits thereto, Plaintiffs explained why, under the present circumstances, Washington, D.C. constitutes the relevant geographic jurisdiction establishing the market rates for legal services against which the reasonableness of the rates Plaintiffs seek to recover should be measured; explained the basis for their willingness to have me utilize the Adjusted Matrix as the foundation for the hourly rates for which Plaintiffs’ Washington counsel should be compensated; and identified the hours reasonably expended by counsel in researching, drafting, filing, and arguing the motion to compel following the imposition of appropriate professional billing judgment, which resulted in the exclusion of a significant number of hours (54.80 hours, more than half of the total number of hours). Based upon the conclusions yielded by these analyses, Plaintiffs performed an appropriate “lodestar” calculation to arrive at a total of $20,399.00 for which recovery is sought. However, although Plaintiffs’ counsel have set forth plausible arguments why Washington, D.C. could be used as the relevant market to establish reasonable rates for counsel’s services, the reasonable rate for purposes of the lodestar figure is generally the prevailing market rate for comparable services in the community in which the services were rendered, see Rum Creek Coal Sales, Inc v. Caperton, 31 F.3d 169, 179 (4th Cir. 1994) (“The relevant legal community is generally that in which the district court sits.”), and given that the VDOC Defendants are state actors being sued in their official capacities, the Commonwealth should not be punished excessively for its
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counsel’s failure to lodge any challenge to the reasonableness of the hourly rates. And, significantly, Plaintiffs’ arguments addressing Johnson factor no. 2 – the novelty and difficulty of the question raised – acknowledge that, “in the abstract,” at least, “there is there is nothing necessarily either ‘novel’ or ‘difficult’ about challenging an adversary party’s refusal to respond to a discovery request on the basis of a ‘relevancy’ objection . . . .” In these particular circumstances, the novelty and difficulty of the question arise mostly from Defendants’ counsel’s refusal to explain objections to Plaintiffs’ reasonable discovery requests.
I find that Plaintiffs are entitled to a fee award of $400.00 per hour for Mr. Howard’s services on the motion to compel, and $230.00 per hour for Ms. Lombard’s services. In recent cases in this district, District of Columbia attorneys with similar high-caliber qualifications have been awarded fees generally around a top end of $350.00. See, e.g., Allstar Lodging, Inc. v. Rookard, Civil Action No. 5:13-cv-00053, 2013 WL 6002070, at *5 (W.D. Va. Nov. 12, 2013) ($350.00); Hudson v. Pittsylvania County, Va., Civil Action No. 4:11-cv-00043, 2013 WL 4520023, at *4 (W.D. Va. Aug. 26, 2013) ($350.00). However, even in a more remote division of this district, the rate of $400.00 per hour has been awarded for an experienced attorney’s services. See Quesenberry v. Volvo Group North America, Inc., Civil Action No. 1:09-cv-00022, 2010 WL 2836201 (July 20, 2010). Given Mr. Howard’s experience and qualifications, he is entitled to at least $400.00 per hour for his services in this legal community. The fee award of $400.00 per hour for Mr. Howard represents about 78% of the requested Adjusted Matrix hourly fee of $510.00 per hour. Ms. Lombard, although not as senior as Mr. Howard, is nonetheless well-qualified and experienced, and she is entitled to at least $230.00 per hour for her services in this legal community. The rate of $230.00 per hour for Ms. Lombard’s services represents about 78% of the requested Adjusted Matrix hourly fee of $295.00 per hour.
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IV. For the stated reasons, I will grant Plaintiff’s petition, filed pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), to the extent that they may recover the total amount of $15,980.00 in reasonable expenses and attorney’s fees incurred in the preparation and filing of the motion to compel. An appropriate order accompanies this memorandum opinion. Entered this 15th day of April, 2014.
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

This matter is before me upon consideration of the “Emergency Motion to Stay Litigation Pending Joinder of Necessary Party” filed by one of the defendants in this matter, Corizon Health, Inc. (“Corizon”).1
Regarding a request for a “discretionary stay,” i.e., when “an automatic stay is not available,” the United States Court of Appeals for the Fourth Circuit has held that “consideration of [a party’s] entitlement to a stay” is limited “to the inherent power in courts under their general equity powers and in the efficient management of their dockets to grant relief.” Williford v. Armstrong World Industries, Inc., 715 F.2d 124, 127 (4th Cir. 1983). The “proper use of this authority ‘calls for the exercise of judgment which must weigh competing interests and maintain an even balance.’ The party seeking a stay must justify it by clear and convincing circumstances outweighing potential harm to the party against whom it is operative.” Id. (quoting Landis v.

1 The following individual VDOC employees are presently named as Defendants in their official capacities: Harold W. Clarke, the Director of the Virginia Department of Corrections (“VDOC”); David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling, VDOC’s Director of Health Services; Phyllis A. Baskerville, the Warden at Fluvanna Correctional Center for Women (“FCCW”); and Paul C. Ohai, M.D., Medical Director at FCCW. At present, Corizon Health, Inc. (“Corizon”) is a defendant, and Armor Correctional Health Systems, Inc. (“Armor”) is a former defendant.

North American Co., 299 U.S. 248, 254-55 (1936)). Indeed, “‘[t]he suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to someone else.’” Id. (quoting Landis, 299 U.S. at 255).
Corizon unilaterally seeks to suspend this litigation as to all parties, but offers no credible basis for granting the extraordinary relief requested. For the reasons discussed below, I will deny the motion.
I. The original complaint was filed two years ago, in July 2012, and the matter is set for a two-week trial to commence on December 1, 2014. I have thoroughly set forth the factual and procedural background in this case in several other opinions, and I will present only a brief summary here. Plaintiffs, all prisoners residing at Fluvanna Correctional Center for Women (“FCCW”), a facility of the Commonwealth of Virginia Department of Corrections (“VDOC”), filed an action pursuant to 42 U.S.C. § 1983 alleging that defendants had violated and continue to violate plaintiffs’ constitutional rights under the Eighth Amendment to be free from cruel and unusual punishment. Plaintiffs assert that FCCW and VDOC fail to provide adequate medical care and that defendants are deliberately indifferent to this failure. Plaintiffs request a declaratory judgment and preliminary and permanent injunctions ordering FCCW and VDOC to provide adequate medical care to plaintiffs and all other similarly situated women residing at FCCW.2
2 Suffice it to say that (as I have observed in previous opinions entered in this case) plaintiffs’ complaint and (continued...)
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Just over a year ago, Corizon replaced a defendant in this case, Armor Correctional Health
Systems, Inc. (“Armor”), as the for-profit provider of medical services for VDOC at FCCW, and
on July 15, 2013, the complaint was amended to add Corizon as a defendant. Thereafter, Armor
filed a motion to dismiss, arguing that plaintiffs’ claims for injunctive and declaratory relief
against Armor should be denied as moot because Armor’s contract with VDOC had expired and
Corizon (which had previously been the contractual provider of medical services at FCCW
during part of the time covered in plaintiffs’ complaint and amended complaints) had assumed the contract to provide medical services at FCCW.3 I granted Armor’s motion to dismiss.
Corizon now takes the position that the entire litigation should be stayed for at least three
months because of the likelihood that, on October 2, 2014, Armor will replace Corizon as the
medical provider at FCCW. However, the crux of the complaint is that, because of VDOC
employees’ deliberate indifference, VDOC and FCCW have failed (and continue to fail) to
provide constitutionally adequate medical care to FCCW inmates. Regardless of the status of
any contract VDOC has with Armor or Corizon, it is not necessary and it would not serve justice to further delay trial in this case by issuing a stay,4 especially given that both Armor and Corizon
are and will be subject to discovery rules in this case, either as a party or as a third-party.
2(...continued) amended complaints are replete with exhaustive, detailed allegations of a systemic failure on an on-going basis of FCCW medical staff and agents of VDOC to provide medical care to the women incarcerated at FCCW that satisfies the minimum standards mandated by the Eighth Amendment to the United States Constitution. 3 Regarding Corizon, plaintiffs expressly allege that Corizon engages (and previously engaged) in a pattern of wrongful practices and deliberate indifference to the serious medical needs of plaintiffs and the entire population of prisoners at FCCW. 4 The original trial date in this case was October 15-25, 2013, but it has been continued three times. The first continuance was required because Corizon was added as a defendant after it was renewed as VDOC’s medical provider. Another continuance was requested because of Corizon’s lead counsel’s military reserve obligation. The third continuance was sought because of Corizon’s decision – a year and a half into a complex case – to replace its counsel (who had also served as counsel for Armor when it was a defendant in this case).
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II. A.
Corizon states that Armor is a “necessary” and “indispensable party” to this case.
However, the individual VDOC employees named as defendants in their official capacities are
the “necessary” and “indispensable” parties in this action seeking declaratory and injunctive
relief. As VDOC’s contractual, for-profit medical provider, Corizon is at present a proper party,
but VDOC’s contractor is not a party in the absence of which “the court cannot accord complete
relief among existing parties.” Fed. R. Civ. P. 19(a)(1)(A). Nor can VDOC’s contractor claim
that it has “an interest relating to the subject of the action” and that it “is so situated that
disposing of the action in [its] absence” would “as a practical matter impair or impede the
interest” or “leave an existing party subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations because of the interest.” Fed. R. Civ. P. 19(a)(1)(B). The allegations in this case concern VDOC’s duty to provide medical care for its inmates
that meets the minimum standards required by the Eighth Amendment to the United States Constitution, and the requested injunctive and declaratory relief, if granted, will require VDOC
to ensure that adequate medical care is provided to plaintiffs and all other similarly situated
women residing at FCCW, regardless of whether VDOC’s medical contractor is Corizon, or Armor, or some other entity.5 This case will proceed to the merits, and neither Armor nor
5 Corizon’s instant motion echoes the substance (and merits) of plaintiffs’ arguments in opposition to Armor’s motion to dismiss for mootness (that the facts and circumstances surrounding the expiration of Armor’s contract to provide medical care services at FCCW implicate the “voluntary cessation” exception to the mootness doctrine, that Armor bore a heavy burden “to show that there is no reasonable possibility that it will again occupy that position in the future,” and that “the circumstantial evidence embodied in the VDOC’s ‘revolving door’ approach to contracting for the provision of medical care services at its correctional facilities places Armor’s capacity to meet its burden . . . in doubt”). If I were to stay the case because, as Corizon argues, Armor will be a “necessary” or “indispensable” party, then I should not have dismissed the case against Armor as moot, given that it was
(continued...)
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Corizon (nor any other medical care provider with which VDOC may form a contract) will be “free to resume [or continue the] challenged conduct in the absence of a substantive determination.” Americans United for the Separation of Church and State v. Bd. of Education of Beechwood Ind. School Dist., 369 F. Supp. 1059, 1061 (1974) (citing Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944)).
B. Corizon contends that “without a stay, [it] will be forced to expend significant resources to defend itself as a party in this [case], which may be moot as to [it] by October 2, 2014.” However, given Corizon’s role as VDOC’s medical care contractor from April 2006 to November 2011 and from May 1, 2013, to the present, it is a participant in the factual circumstances implicated in this litigation, whether it participates as a party defendant or as a third party (as Armor is at present). The Federal Rules of Civil Procedure expressly permit discovery from nonparties and, given the allegations, Corizon will remain a focus of plaintiffs’ discovery and will continue to require counsel and to incur litigation costs, regardless of whether it is a party or a third party. Corizon has not presented “clear and convincing circumstances” that justify its request for a stay. Williford, 715 F.2d at 127.
C. Corizon argues that I should “‘weigh competing interests and maintain an even balance,’”
5(...continued) formerly a “necessary” or “indispensable” party. Hypothetically speaking, had I denied the motion to dismiss, and following Corizon’s argument to a logical conclusion, should Armor again step in as VDOC’s contractual medical provider (as it appears Armor will), and should Corizon file a motion to dismiss (as Armor did, when it was replaced as VDOC’s contractual medical provider) arguing that plaintiffs’ claims for injunctive and declaratory relief against Corizon should be denied as moot because Corizon’s contract with VDOC has been terminated and Armor has assumed the contract to provide medical services at FCCW, then I would be obliged to deny the motion, given that Corizon was formerly a “necessary” or “indispensable” party.
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id. (quoting Landis, 299 U.S. at 254-55), but it fails to observe that “[t]he party seeking a stay must justify it by clear and convincing circumstances outweighing potential harm to the party against whom it is operative,” id. (emphasis added) and that it “‘must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which [it] prays will work damage to someone else,’” id. (quoting Landis, 299 U.S. at 255).
The progress of this case to trial has already been delayed by more than a year as a result of a previous change in the identity of VDOC’s medical care contractor and other complications involving Corizon and its counsel – events over which plaintiffs have had no control. Now, without any acknowledgment of the possible adverse impact that a further delay of the proceedings could have on plaintiffs, Corizon unilaterally seeks to suspend this litigation as to all parties, apparently for no better reason than that it would be inconvenient for Corizon to continue to participate as a litigant during the pendency of its status as VDOC’s contractor. However, given plaintiffs’ allegations regarding defendants’ systemic failure to provide medical care at FCCW that meets constitutional minimum standards (including the denial of needed treatment, the failure to refer for outside specialized care, the failure to follow through on outside specialists’ treatment instructions, disruptions in the continuity of critical medication, and the like), a further delay of plaintiffs’ day in court would be prejudicial to plaintiffs’ legitimate interest in a timely resolution of their Eighth Amendment claims. To be sure, it appears likely that Corizon will eventually be relieved of its role as a defendant in this case, but it has not presented “‘a clear case of hardship or inequity in being required to go forward,’” especially in light of the “‘fair possibility that the stay for which [it] prays will work damage to someone else.’” Id. (quoting Landis, 299 U.S. at 255). As the Fourth Circuit observed in Williford,
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[o]f particular significance in balancing the competing interests of the parties in the case at bar are the human aspects of the needs of a plaintiff in declining health as opposed to the practical problems imposed by the proceedings . . . , which very well could be pending for a long period of time. A stay under such circumstances would work manifest injustice to the claimant.
Id. at 127-28.

III.

For the stated reasons, Corizon’s “Emergency Motion to Stay Litigation Pending Joinder

of Necessary Party” will be denied. An appropriate order accompanies this memorandum

opinion. Entered this 28th

day of July, 2014.

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

Plaintiffs have filed a motion to compel discovery. The motion has been briefed and the parties’ arguments have been heard. Citing Castle v. Jallah, 142 F.R.D. 618, 620 (E.D. Va. 1992) (the only case cited in the entirety of Defendants’ opposition to the motion to compel), Defendants acknowledge that, as they phrase it, “[t]he burden is on the person objecting to discovery to show that discovery should not be allowed.” At the conclusion of the hearing on the motion to compel, I granted Plaintiffs’ motion, and stated that I would issue a memorandum opinion on the matter.
As demonstrated at the hearing and discussed herein, Defendants do not remotely satisfy their burden. Accordingly, I will grant Plaintiffs’ request, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), to recover reasonable expenses and attorney’s fees incurred in the preparation and filing of the motion to compel.
I. Plaintiffs, all prisoners residing at Fluvanna Correctional Center for Women (“FCCW”),

filed an action pursuant to 42 U.S.C. § 1983 alleging that Defendants violated Plaintiffs’
constitutional rights under the Eighth Amendment to be free from cruel and unusual punishment.
Plaintiffs assert that FCCW fails to provide adequate medical care and that Defendants are
deliberately indifferent to this failure. Plaintiffs request a declaratory judgment and preliminary
and permanent injunctions ordering FCCW to provide adequate medical care to Plaintiffs and all
other similarly situated women residing at FCCW.
FCCW is a facility of the Commonwealth of Virginia Department of Corrections (the
“VDOC”). Most of the individual Defendants are VDOC employees who are being sued in their
official capacities, and on December 11, 2012, I denied the individual state employees’ motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).1 On February 6, 2013,
Plaintiffs’ motion for leave to file an amended complaint was granted, and an amended
complaint was filed.2
On July 15, 2013, Plaintiffs were granted leave to file a second amended complaint. The
second amended complaint recognized the VDOC’s transfer of responsibility, on or about May
1 The individual state employee Defendants are Harold W. Clarke, the Director of the Virginia Department of Corrections (the “VDOC”); David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling, VDOC’s Director of Health Services; and Phyllis A. Baskerville, the Warden at Fluvanna Correctional Center for Women (“FCCW”). The original complaint named “John/Jane Doe, M.D., Acting Medical Director, Fluvanna Correctional Center for Women,” and the amended complaint named “Paul C. Ohai, M.D., Medical Director, Fluvanna Correctional Center for Women.” The medical director was not a party to the individual state employee Defendants’ motion to dismiss.
As I observed in the opinion denying the individual state employees’ motion to dismiss and in several other opinions entered in this case, Plaintiffs’ complaint and amended complaints are replete with exhaustive, detailed allegations of a systemic failure on an on-going basis of FCCW medical staff and agents of the VDOC to provide medical care to the women incarcerated at FCCW that satisfies the minimum standards mandated by the Eighth Amendment to the United States Constitution. Plaintiffs have alleged that, as a result of this ongoing, systemic failure, women at FCCW have suffered and continue to suffer adverse physical and mental effects from the failure to provide medical care (or the provision of deficient care) in deliberate indifference to their serious medical needs.
2 As previously noted, the amended complaint identified Paul C. Ohai as a defendant; otherwise, the amended complaint varied from the original complaint only in slight clarifications of various allegations.
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1, 2013, for medical care services at FCCW from Armor Correctional Health Services, Inc. (“Armor”) to Corizon Health, Inc. (“Corizon”). The second amended complaint names as defendants Corizon and Mark Militana, M.D., Corizon’s on-site Medical Director at FCCW.
Armor filed a motion to dismiss, arguing that, because Armor’s contract with VDOC had expired and that Corizon (which had formerly been the contractual provider of medical services at FCCW during part of the time covered in Plaintiffs’ complaint and amended complaints) had assumed the contract to provide medical services at FCCW, Plaintiffs’ claims for injunctive and declaratory relief against Armor should be denied as moot. I granted Armor’s motion to dismiss.
Dr. Militana filed a motion to dismiss the second amended complaint, arguing that it “only identif[ies] him as the Medical Director at FCCW since on or after May 1, 2013,” and “make[s] no mention of any allegations of wrongdoing by” him. I denied the motion to dismiss because the second amended complaint expressly alleges that Corizon’s medical staff at FCCW functions “[s]ubject to the supervision and oversight of Dr. Militana” and that Corizon, under Dr. Militana’s direct supervision and oversight, has adopted and perpetuated the same pattern and practice of constitutionally deficient medical care that existed when Corizon assumed the contract from its predecessor, Armor (patterns and practices that Corizon instituted as Armor’s predecessor).
II. Plaintiffs’ Request No. 14 seeks production by the VDOC Defendants of [a]ll documents concerning the VDOC’s policies, practices and/or procedures establishing medical care standards or protocols to be followed by the VDOC’s contractual medical care providers with respect to the diagnosis, treatment and management of infectious diseases and chronic conditions including, without limitation:
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a. Hepatitis (all types) b. Diabetes (all types) c. MRSA d. Tuberculosis e. Cancer (all types) f. HIV/AIDs g. Hypertension.

Plaintiffs’ Request No. 15 seeks

[a]ll documents concerning or constituting any reports made by FCCW or the VDOC’s contractual medical care provider to VDOC or any other governmental agency concerning the incidence and/or tracking of any of the infectious diseases addressed in Document Request No. 14, supra, at FCCW from April 2006 to the present.

The substantive connection is readily apparent between the information sought by

Requests Nos. 14 and 15 and the claims stated in Plaintiffs’ 47-page second amended complaint.

This is a proposed class action in which plaintiffs are proceeding in a representative capacity on

behalf of all of the women incarcerated at FCCW and who have been, are now, or will be subject

to systemically deficient medical care practices on the part of FCCW and the VDOC’s

contractual medical care provider. Plaintiffs’ claims are

•

that FCCW systemically fails to provide constitutionally adequate medical

care;

•

that the medical care provided at FCCW deviates, based on cost

considerations, from the appropriate standard of care, including

•

a deficient sick call process,

•

the failure and refusal to acknowledge, examine, diagnose, and treat

serious or potentially serious inmate medical problems,

•

the failure and refusal to refer FCCW inmates for needed specialized

care,

•

the failure and refusal to carry out specialists’ prescribed courses of

treatment,

•

and the failure and refusal to provide FCCW inmates with effective

medication for severe, chronic pain;

•

that the medical care at FCCW deviates from the appropriate standard of

care based upon non-medical, arbitrarily stated security considerations;

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•

and that unnecessary and preventable fatalities attributable to FCCW’s

systemic failure to provide constitutionally adequate medical care have

occurred and will continue to occur.

As a proposed class, Plaintiffs claim that

[a]ll FCCW prisoners comprising the proposed class are equally subject to the actual or potential adverse impacts on their physical health and mental and emotional well-being resulting from the long-standing and on-going pattern and practice of systemic unconstitutional acts and omissions on the part of the defendants described in this Complaint. Thus, common questions of law and fact exist as to all class members. Those common questions include, but are not necessarily limited to: (i) whether defendants systematically provide inadequate medical care to the prisoners residing at FCCW; (ii) whether defendants’ acts and/or omissions in the provision of or failure to provide medical care at FCCW reflect deliberate indifference to the serious medical needs of the prisoners residing at FCCW; (iii) whether defendants’ provision of inadequate medical care on a systemic basis has placed the prisoners residing at FCCW at an unreasonable risk of suffering new or worsening physical injury, illness, mental anguish, emotional distress and the prospect of premature death; and (iv) whether defendants have violated the rights of the prisoners residing at FCCW to be free from cruel and unusual punishment as proscribed by the Eight Amendment?

The various infectious diseases and chronic conditions that are the subjects of Requests Nos. 14

and 15, and which are represented by and reflected in the health problems of the FCCW prisoner

population as a whole, are obviously relevant to the claims stated in Plaintiffs’ complaint. Even

ignoring the class action allegations, and focusing solely on the alleged health problems of the

individual plaintiffs and the inadequate (or non-existent) care they claim they have experienced,

there is a clear linkage between Requests Nos. 14 and 15 and Plaintiffs’ claim for relief.

Plaintiff Marguerite Richardson has expressly alleged that she suffers from Hepatitis C

and Methicillin-resistant Staphylococcus aureus (MRSA), two of the infectious diseases or

conditions that are the subject of inquiry in Document Requests Nos. 14 and 15. As an example

and illustration of the deficient medical care routinely provided by the defendants at FCCW, the

complaint alleges systemic deficiencies regarding the manner in which Ms. Richardson has been

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informed about and treated for these serious health problems, which involve communicable
(even highly contagious) illnesses that commonly adversely affect prison inmate populations.
The claims in the complaint are not limited by the specific allegations stated as examples of the
claims. Documents that refer, relate to, or reflect deficiencies or inadequacies in the manner in
which various infectious diseases and chronic conditions (including, but not limited to, Hepatitis
C and MRSA) are addressed and treated in general by the VDOC and its contractors, or which
reflect the contractors’ failure to acknowledge or comply with the VDOC’s articulated policies
and procedures, are obviously relevant to Ms. Richardson’s allegations in particular and more
generally to Plaintiffs’ claim regarding an on-going pattern and practice of sub-standard medical
care on the part of the defendants.
Plaintiffs’ Request No. 21 seeks production by the VDOC Defendants of
[a]ll documents concerning any investigation or inquiry conducted by the VDOC with respect to fatalities of FCCW prisoners who died in the Infirmary at FCCW or at an outside medical care facility to which PHS or Armor referred the deceased prisoner(s), from on or about April 19, 2006 to the present.
The complaint expressly alleges that
the systemic practices and procedures originally adopted and implemented by PHS, and subsequently ratified and implemented by Armor and Corizon, respectively, have resulted in deaths which provision of appropriate medical care could and should have prevented. Such practices and procedures embody and reflect deliberate indifference to the serious medical needs of prisoners residing at FCCW and continue to pose an increased and undue risk of premature death to the named plaintiffs and the members of the class they seek to represent.
As the basis of and justification for the declaratory and injunctive relief Plaintiffs seek in
this action, the complaint alleges that the constitutionally deficient medical care provided to
them (and FCCW prisoners in general) by the VDOC and its contractors subjects them to
“substantial existing, on-going and/or imminent physical injury, illness and undue risk of
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premature death in deliberate indifference to their rights under the Eighth Amendment[.]”
Moreover, Plaintiffs have alleged specific instances of premature death that have already
occurred at FCCW as a result of Defendants’ systemically inadequate care. The nexus between
these allegations and the substance of the documents sought by Request No. 21 is facially
apparent and undeniable.
The VDOC Defendants object to the production of all but a limited volume of documents
responsive to Plaintiffs’ Request No. 14,3 and to the production of any documents responsive to
Plaintiffs’ Requests Nos. 15 and 21, on the ground that the requests seek information that is “not
relevant to this case” as perceived by the VDOC. Regarding Request No. 14, the objection is
that
VDOC’s policies, practices and/or procedures establishing medical care standards and protocols to be followed by the VDOC’s contractual medical care providers with respect to the diagnosis, treatment and management of infectious diseases and chronic conditions . . . other than for infectious diseases and chronic conditions which Plaintiffs specifically suffer from such as Hepatitis and MRSA, are not relevant to the case.
Regarding Request No. 15, the objection is that
[a]ny documents concerning or constituting any reports made by FCCW or the VDOC’s contractual medical care providers to VDOC or any other government agency concerning the incidents [sic] and/or tracking of any of the infectious diseases addressed in Document Request 14 at FCCW from April 2006 to the present, except those specifically pertaining to Plaintiffs are not relevant to the case.
Regarding Request No. 21, the “VDOC defendants object to this request because it is not
relevant to the allegations raised by the Plaintiffs concerning their medical treatment at FCCW
3 In response to Request No. 14, Defendants have produced a small number of documents expressly pertaining to the VDOC’s stated practices and procedures for addressing and responding to cases of hepatitis and MRSA (the two conditions, among all of those made the subject of inquiry in Request No. 14, of which one named plaintiff, Marguerite Richardson, suffers).
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and because it would necessarily bring in other inmates’ medical records and information which are confidential.” Plaintiffs expressly indicated their willingness to negotiate and enter into an appropriate confidentiality or protective order imposing limitations on the scope of use or public dissemination of documents produced by Defendants, or even to allow Defendants to simply redact the names of the prisoners whose records might be produced in response. This proposed accommodation has not altered Defendants’ objection.
III. A. Absent a court order expressly to the contrary, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense[.]” Fed. R. Civ. P. 26(b)(1). The Rule further provides that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Consistent with the language of the Rule, the United States Court of Appeals for the Fourth Circuit has observed that “[d]iscovery under the Federal Rules of Civil Procedure is broad in scope and freely permitted.” CareFirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402 (4th Cir. 2003) (citation omitted); see also Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977) (stating that information that is “germane to the subject matter of the pending action” is discoverable). The district courts in the Fourth Circuit have repeatedly acknowledged the principle that relevancy, in the discovery context, merits and must be given a broad construction. See, e.g., Kidwilder v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 199 (N.D. W. Va. 2000): Information is relevant, for discovery purposes, if it “bears on, or . . . reasonably -8-

could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Although “the pleadings are the starting point from which relevancy and [the scope of] discovery are determined . . . [r]elevancy is not limited by the exact issues identified in the pleadings, the merits of the case, or the admissibility of discovered information.” Rather, the general subject matter of the litigation governs the scope of relevant information for discovery purposes. Therefore, courts broadly construe relevancy in the context of discovery.
(Citations omitted); see also Carr v. Double T Diner, 272 F.R.D. 431, 433 (D. Md. 2010) (“[t]he
scope of relevancy under discovery rules is broad, such that relevancy encompasses any matter
that bears or may bear on any issue that is or may be in the case” (citations omitted)); Floren v.
Whittington, 217 F.R.D. 389, 391 (S.D. W.Va. 2003); Spell v. McDaniel, 591 F. Supp. 1090,
1114 (E.D. N.C. 1984) (“Rules 26 through 37 of the Federal Rules have been interpreted
liberally to allow maximum discovery. . . . Therefore, discovery requests should be complied
with if there is a reasonable possibility that the information sought may be relevant to the subject
matter of the action” (emphasis added; citations omitted)).4
4 The presumption favoring a broad construction of the concept of relevancy under the Federal Rules is significant in the present context of federal civil rights claims asserted pursuant to 42 U.S.C. § 1983. See, e.g., Floren v. Whittington, 217 F.R.D. 389, 391 (S.D. W.Va. 2003) (recognizing and giving full effect to “the important federal interests in broad discovery and truth seeking as well as the interest in vindicating important federal substantive policy such as that embodied in section 1983” (citations omitted)); Spell v. McDaniel, 591 F. Supp. 1090, 1114-15 (E.D. N.C. 1984); Cox v. McClellan, 174 F.R.D. 32, 34 (W.D. N.Y. 1997) (“actions alleging violations of § 1983 require especially generous discovery”) (citing Inmates of Unit 14 v. Rebideau, 102 F.R.D. 122, 128 (N.D. N.Y 1984) (“[f]ederal policy favors broad discovery in civil rights actions”))). In Floren v. Whittington – a case involving a claim by an individual plaintiff that a policeman’s wrongful entry upon plaintiff’s property and unlawful arrest of the plaintiff was part of a pattern and practice of unconstitutional conduct on the part of the City of Dunbar, WV police force for which City officials bore direct supervisory liability – the district court granted a motion to compel ordering the production of the personnel and internal affairs files of all police officers employed by the municipality except for the files of non-defendant officers never subjected to any citizen complaints, internal investigations or disciplinary actions. See 217 F.R.D. at 391-92; see also Spell, 591 F. Supp. at 1113-15 (in § 1983 action premised upon allegations that policeman’s physical assault of the plaintiff while in custody following arrest for driving while intoxicated was part of a pattern and practice of police brutality in City of Fayetteville, NC, district court granted a motion to compel ordering production of “(1) records of complaints, investigations and reports concerning the incident at bar and [the individual defendant police officer’s] conduct while a member of the Fayetteville Police Department; (2) records of complaints filed, investigations conducted and reports written for internal and external use [concerning] allegations of abuse and unreasonable force within the Fayetteville Police Department since January 1, 1981; and (3) regulations, directives, manuals, official administrative reports and other documents produced by or for the Police Department and used by it to
(continued...)
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Moreover, “[t]he burden is on the party resisting discovery to explain specifically why its objections, including those based on irrelevance, are proper given the broad and liberal construction of federal discovery rules.” Desrosiers v. MAG Industrial Automation Systems, LLC, 675 F. Supp. 2d 598, 601 (D. Md. 2009); see also Marfork Coal Co. v. Smith, 274 F.R.D. 193, 204 (S.D. W.Va. 2011) (“When the requested information appears relevant, the party objecting to providing it must demonstrate that the information has no bearing upon a claim or defense of any party[.]”). Where a prima facie showing of relevance has been made by the party seeking discovery, “the burden shifts . . . to the resisting party to show ‘lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption of broad discovery.’” Desrosiers, 675 F. Supp. 2d at 601 (citations omitted); see also J.K. Mineral Co., LLC v. Swiger, ___ F.R.D. ___, Civ. Action No. 1:12-cv-00143, 2013 WL 663283 at *12 (N.D. W.Va. Feb. 22, 2013) (“Counsel for the opposing party should not be able to act as the gatekeeper to determine what information the adversary is entitled to have.”).
B. The objections Defendants have interposed to Requests Nos. 14 and 15 are without merit. As discussed above, Rule 26(b)(1) and the decisions interpreting its scope are clear that the parties’ claims and defenses establish the parameters within which the relevancy of information sought through discovery is determined. Plaintiffs claim that, as a result of Defendants’
4(...continued) communicate departmental policies or rules of law to officers regarding the use of force.” (Footnotes omitted.)). These cases establish that broad discovery is mandated, even in cases in which individual plaintiffs allege and seek to prove that governmental defendants have engaged in a pattern or practice of unconstitutional conduct.
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deliberate indifference to Plaintiffs’ serious medical needs, Plaintiffs have been, are now and, absent the intervention of a court in the form of declaratory and injunctive relief, will continue to be subjected to a level of medical care at FCCW on a systemic basis that, qualitatively and quantitatively, falls below the minimum standard dictated by the Eighth Amendment. The subject matter of Plaintiffs’ Requests Nos. 14 and 15 (documents concerning practices, procedures and standards established by the VDOC for addressing and treating infectious diseases and chronic conditions, and documents shedding light on how FCCW and the VDOC’s medical care contractor adhere to – or fail to comply with – those practices, procedures and standards) is obviously relevant to the substance of Plaintiffs’ claim.
Defendants propose that, because a particular named Plaintiff (Marguerite Richardson) has alleged that she is afflicted with only two of the particular diseases or conditions in regard to which Requests Nos. 14 and 15 more broadly inquire, the scope of relevancy is somehow circumscribed by Ms. Richardson’s allegations. But Ms. Richardson’s allegations setting forth the deficient manner in which the FCCW Medical Staff has responded to or treated her Hepatitis C and her MRSA infection are merely illustrative examples of the facts supporting Plaintiffs’ contentions. The allegations do not, in themselves, constitute Plaintiffs’ claim, and it is the claim, not isolated underlying allegations stated in support of the claim, that establishes the bounds of relevancy.
The documents sought by Plaintiffs’ Requests Nos. 14 and 15 constitute information that “bears on or . . . reasonably could lead to other matter[s] that could bear on” issues that are or may be raised in this case. Kidwilder, 192 F.R.D. at 199 (citations omitted).5 Non-privileged
5 See also Océ North America, Inc. v. MCS Services, Inc., Civ. Action No. 1:10-cv-00984, 2011 WL 197976 at (continued...)
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documents responsive to these requests fall easily within the broad scope of relevancy applicable to federal civil cases generally and federal civil rights actions under § 1983 in particular. The VDOC Defendants are obligated to show otherwise, and they have not met this burden.
C. Plaintiffs’ Request No. 21 seeks the production of documents referring to, relating to or reflecting investigations undertaken by the VDOC with respect to fatalities of FCCW prisoners who died in the Infirmary at FCCW or at an outside medical care facility to which the deceased prisoner was referred by FCCW Medical Staff. The complaint and amended complaints allege that, as a result of the constitutionally deficient medical care rendered by the VDOC and its medical care contractors, Plaintiffs face a heightened and undue risk of premature death. Indeed, Plaintiffs have alleged specific instances which they believe to be illustrative of the phenomenon of premature, preventable fatalities attributable to substandard medical care at FCCW which the relief sought in this action might prevent. The documents sought by Request No. 21 are patently relevant to this element of Plaintiffs’ overall Eighth Amendment claim. The essence of Defendants’ relevancy objection is that, because none of the four named plaintiffs have themselves yet died as a result of the alleged inadequate medical care at FCCW, documents concerning the VDOC’s investigation into the facts and circumstances of fatalities
5(...continued) *4 (D. Md. Jan. 20, 2011), observing that,
[t]o be discoverable, information must be relevant to any party’s claim or defense, though it need not be admissible at trial. Fed. R. Civ. P. 26(b)(1). Courts broadly construe relevancy within the context of discovery to encompass any matter that bears or may bear on any issue that is or may be in the case. Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 199 (N.D. W.Va. 2000) (citing Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340, 350 (1978)).
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involving FCCW prisoners are necessarily beyond the bounds of discovery.6 However,
documents that may call into question or cast doubt upon the nature or extent of medical care
provided to FCCW prisoners in instances in which deaths resulted undoubtedly involve “matter
that bears on or may bear on any issue that is or may be in the case.” Océ North America, Inc. v.
MCS Services, Inc., Civ. Action No. 1:10-cv-00984, 2011 WL 197976 at *4 (D. Md. Jan. 20,
2011) (citations omitted). Defendants cannot simply disregard the claims and express
allegations in Plaintiffs’ pleadings.7 The discovery sought is clearly relevant to Plaintiffs’
claims. J.K. Mineral Co., 2013 WL 663283 at *12 (counsel not permitted to act as sole arbiter
of scope of discovery to which adverse party is entitled). Defendants’ conclusory contention that
the documents sought by Plaintiffs through Request No. 21 are “not relevant” does not meet
“[t]he burden . . . on the party resisting discovery to explain specifically why its objection[ ] . . .
[is] proper given the broad and liberal construction of the federal discovery rules.” Desrosiers,
675 F. Supp. at 601; see also Marfork Coal, 274 F.R.D. at 204. Defendants must promptly
6 At the hearing on the motion to compel, counsel for the VDOC Defendants denied that the relevancy objection is based on an assertion that none of the four named plaintiffs are deceased. Then, counsel for the VDOC Defendants proceeded to argue that Plaintiffs had “not made a connection between the relevance of those documents and the allegations of inadequate medical care that they are alleged to have suffered from. . . .” Counsel added that the complaint had lodged “what appears to be a sweeping statement that . . . two deaths are illustrative of a phenomena of premature preventable fatalities.” Suffice it to say that the complaint includes the explicit claim that, because of the substandard medical care provided at FCCW, the named Plaintiffs and other similarly situated FCCW inmates face a substantial risk of undue future harm including, but not limited to, the risk of premature and easily preventable death. A plaintiff in a case such as this need not die in order to state a claim that she is in danger because of constitutionally deficient medical care. See, e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . It would be odd to deny an injunction to inmates who plainly prove an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. . . . [A] remedy for unsafe conditions need not await a tragic event.”); Thompson v. Neeb, Civil Action No. 7:07-cv-00092, 2007 WL 2570220 at *4 & n. 4 (W.D. Va. Aug. 31, 2007) (“an Eighth Amendment claim may be based on a defendant’s conduct in exposing an inmate to an unreasonable risk of future harm”) (citing Hellling).
7 At the hearing on the motion to compel, counsel for Plaintiffs described Defendants’ objections as “collaterally attack[ing] this court’s refusal to dismiss the complaint by essentially disregarding specific allegations in the complaint. . . .”
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produce responsive documents.
D.
In their opposition to the motion to compel, the VDOC Defendants assert that Plaintiffs’
Requests Nos. 14, 15, and 21 call for “inmates’ medical information which is confidential,” and
insist that they “cannot produce such information by simply entering into a confidentiality
agreement with Plaintiffs.” Counsel for the VDOC Defendants repeated this assertion at the
hearing on the motion to compel. As I have already observed, the record discloses and the
parties acknowledged at the hearing that Plaintiffs’ counsel expressly indicated their willingness
to negotiate and enter into an appropriate confidentiality or protective order imposing limitations
on the scope of use or public dissemination of documents produced by Defendants, or even to
allow Defendants to simply redact the names of the prisoners whose records might be produced in response.8
Defendants’ objection does not establish a basis for avoiding discovery. Indeed, the
Fourth Circuit has endorsed the proposition that the otherwise-discoverable private medical
information of non-parties can be protected adequately by crafting an appropriate protective
order. The private nature of the information does not shield it from discovery. See, e.g., Watson
8 The VDOC Defendants failed to raise any legal argument in support of their objection to the production of otherwise-discoverable documents. Defendants simply assert that such information may involve the privacy interests of non-party prisoners. Defendants do not attempt to explain why an appropriate confidentiality or protective order, agreed upon by the parties and approved by the court pursuant to Fed. R. Civ. P. 26(c), would be inadequate to protect valid confidentiality concerns.
At the hearing, counsel for Defendants asserted that, “notwithstanding having conversations with Plaintiffs’ counsel” about “how we best protect . . . confidential medical information,” “we were just unable to come to an agreement with regard to how to best produce those documents without violating the privacy of other inmates.” The exhibits Plaintiffs submitted with their motion to compel shows that, when counsel for Plaintiffs corresponded at length to counsel for Defendants after Defendants raised their confidentiality objections to Requests Nos. 15 and 21, counsel for Defendants simply responded, “See Defendants’ previously stated objection to this Request.”
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v. Lowcountry Red Cross, 974 F.2d 482, 489-92 (4th Cir. 1992) (in a case involving wrongful
death of infant as a result of transfusion of HIV-contaminated blood collected by defendant, the
Fourth Circuit affirmed a district court’s refusal to shield non-party blood donor from reasonable
discovery; the district court’s ruling provided, inter alia, that “[p]laintiff, defendant and counsel
for all concerned are directed by this Order not to disseminate any information learned about the donor or his appointed counsel to any party without further order of this Court”).9
Accordingly, when I granted the motion at the conclusion of the hearing, I directed the
parties to reach an agreement regarding confidentiality or to seek an appropriate protective order.
In any event, the motion to compel is granted, and the VDOC Defendants must promptly
produce responsive documents.
IV. Plaintiffs argue that they are entitled to recover their reasonable expenses incurred in the
preparation and filing of this motion, including attorney’s fees. Federal Rule of Civil
Procedure 37(a)(5)(A) provides, in pertinent part, as follows:
If [a] motion [filed pursuant to this Rule] is granted – or if the disclosure or requested discovery is provided after the motion was filed – the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.
9 See also Doe v. American Nat’l Red Cross, 151 F.R.D. 71, 73-74 & n. 5 (S.D. W.Va. 1993) (in an HIV-contaminated blood transfusion case, the district court allowed the plaintiff to conduct donor discovery, subject to the terms of an order imposing express restrictions upon further public dissemination or disclosure of the donor’s private and personal information, including a prohibition on use of the donor’s specific identifying information in court filings, a requirement that donor be referred to by an alias in any depositions concerning him, and prohibiting the disclosure of the donor’s identity by counsel in working with their own experts and consultants; regarding the documents at issue, the court’s order expressly stated: “The identity of the person named herein is confidential. The contents of and your compliance with this Order should be handled accordingly.”).
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As indicated in the preceding discussion, the objections the VDOC Defendants have interposed as a basis for limiting their response to Plaintiffs’ Request No. 14 and for refusing to provide any discovery responsive to Requests Nos. 15 and 21 are not well-taken. Plaintiffs’ requests plainly seek information “relevant to [plaintiffs’] claim” in this action as contemplated by Rule 26(b)(1) and the case law illuminating the concept of relevance embodied in that Rule. Accordingly, I will award Plaintiffs’ their “reasonable expenses incurred in making the motion” to compel, “including attorneys’ fees.” The order accompanying this memorandum opinion will direct Plaintiffs to file a detailed petition for expenses and fees within 21 days of the date of entry of the order.

V.

For the stated reasons, the motion to compel discovery was granted, and I will grant

Plaintiffs’ motion, filed pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), to recover

reasonable expenses and attorney’s fees incurred in the preparation and filing of the motion. An

appropriate order accompanies this memorandum opinion.

Entered this 25th

day of November, 2013.

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

Defendants have filed a motion for leave to belatedly supplement their Federal Rule of Civil Procedure 26(a)(2) disclosures of expert testimony. For the reasons that follow, the motion will be denied.
I. A two-week trial in this matter is set to begin on December 1, 2014. The deadline for Defendants’ expert witness disclosures was established on March 31, 2014 (in the latest of the oft-amended scheduling orders entered in this case), and it elapsed more than three and a half months before Defendants moved to supplement their disclosures. Defendants filed their motion on September 23, 2014, and Plaintiffs timely responded in opposition, but Defendants did not file a reply. The parties presented their arguments on the matter at the conclusion of the hearing on the parties’ cross-motions for summary judgment on October 17, 2014.
II. Rule 26(a)(2)(D) expressly provides that “[a] party must make these disclosures at the times and in the sequence that the court orders.” (Emphasis added.) “If a party fails to . . . identify a witness as required by Rule 26(a) . . . the party is not allowed to use

that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The consideration of whether a party’s failure to satisfy its expert disclosure obligations under Rule 26(a)(2) should be excused under Rule 37(c)(1) is guided by the following factors:
(1) the surprise to the party against whom the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; (4) the explanation for the party’s failure to name the witness before trial; and (5) the importance of the testimony. Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003) (citations and quotations omitted). “Rule 26 disclosures are often the centerpiece of discovery in litigation that uses expert witnesses. A party that fails to provide these disclosures unfairly inhibits its opponent’s ability to properly prepare, unnecessarily prolongs litigation, and undermines the district court’s management of the case.” Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir. 2005). A district court has “particularly wide latitude” to exercise its discretion to exclude expert witness testimony proffered by a party that has failed to meet the disclosure requirements imposed by Fed. R. Civ. P. 26(a). Id. at 279.
III. The parties jointly submitted an amended scheduling order, which I entered on March 31, 2014. That amended scheduling order established May 30, 2014, as the date when Defendants were to provide Plaintiffs with their Rule 26(a)(2) expert witness disclosures. The expert disclosure provided by the VDOC Defendants (the remaining Defendants in this case)1 on
1 The remaining Defendants, or the “VDOC Defendants,” are Harold W. Clarke, the Director of the VDOC; David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling, VDOC’s Director of Health
(continued...)
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that date did not include any proposed medical experts. Corizon, which was then a defendant but has since been dismissed on the agreement of the remaining parties, designated three medical experts in its disclosures submitted on June 13, 2014, but the VDOC Defendants did not endorse or adopt the Corizon experts as VDOC experts, and after Corizon was dismissed from this case on July 31, 2014, the VDOC Defendants failed to indicate any intention to designate the Corizon experts as their own.
Rule 26(a)(2)(D) states that a party “must” make the disclosures required by other parts of the Rule “at the times and in the sequence that the court orders.” The Rule further provides that “[a]bsent a stipulation or a court order, the disclosures must be made . . . at least 90 days before the date set for trial[.]” Fed. R. Civ. P. 26(a)(2)(D)(i). Here, Defendants failed to heed the amended scheduling order’s deadline of May 30, 2014, to designate and provide the requisite disclosures for any medical expert they might wish to use, and they failed to advise Plaintiffs within 90 days of the December 1, 2014, trial date of their intent to use Corizon’s medical experts’ opinion testimony. In short, Defendants failed to satisfy either of the Rule 26(a)(2)(D) alternatives.
Given Defendants’ failure to comply with Rule 26(a)(2), I must apply the “automatic sanction” imposed by Rule 37(c)(1) of exclusion of testimony by the Corizon experts from trial, unless the VDOC can show that its procedural default was either “substantially justified” or is “harmless.” See Campbell v. United States, 470 F. App’x 153, 156 (4th Cir 2012) (per curiam) (“[T]he Federal Rules impose an ‘automatic sanction’ of exclusion of a party’s expert witness for failure to adhere to the expert witness requirements set forth in Rule 26(a).” (quoting
1(...continued) Services; and Phyllis A. Baskerville, the Warden at FCCW. I will also refer to Defendants as “the VDOC.”
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Southern States, 318 F.3d at 592 n. 2)). Defendants fail to meet their burden to show that the factors weigh in favor of the relief
they seek. See Wilkins v Montgomery, 751 F.3d 214, 222 (4th Cir. 2014) (“The burden of establishing these factors lies with the non-disclosing party[.]” (citing Southern States, 318 F.3d at 596 (“[i]t is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with Rule 37(c)(1) was either justified or harmless” (citation omitted))). Indeed, upon review of the circumstances here, the Southern States factors weigh in favor of exclusion.
The late timing of the disclosure (in fact, after the parties had filed cross-motions for summary judgment) has the effect of surprise upon Plaintiffs, and the surprise cannot be easily cured. Defendants’ contention that Plaintiffs have been aware of the Corizon expert witnesses since they were originally disclosed on June 13, 2013, and that “Plaintiffs have had fair opportunity to depose these witnesses since that time and still may depose them prior to trial” does not offer a rationale under which Plaintiffs should have sought to take the depositions of proposed experts designated by a party – Corizon – that has since been dismissed from the case by agreement of the remaining parties’ (and which the record reflects the remaining parties were contemporaneously undertaking that agreement to dismiss). As for any opportunity to take the depositions of two physicians and a nurse in the limited time still remaining before trial, Defendants fail to explain how it could be “fair” for counsel for Plaintiffs to divert their time, energy, and resources away from trial preparation to undertake activity that, were it to be undertaken at all, should have occurred months ago pursuant to the amended scheduling order.2
2 As discussed further below, Defendants attempt to characterize the testimony of the Corizon experts as (continued...)
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Indeed, on September 2, 2014, the parties submitted a consent motion requesting an extension of the date by which motions to exclude expert testimony would be filed, in light of the parties’ mutually agreed-upon delays in the completion of the depositions of the VDOC’s properly disclosed expert, Mr Angelone, and the Plaintiffs’ expert, Dr. Greifinger. The designation of additional experts (and the undertaking of more expert depositions, and motions to exclude, etc.) obviously would impose burdens on the parties to meet the deadlines requested in the consent motion of September 2, 2014.
Under the third Southern States factor, Plaintiffs would be subjected to a substantially increased commitment of time and expense were I to permit the three additional experts to testify on behalf of Defendants. Doing so would expand Defendants’ case-in-chief, and it would also require Plaintiffs to prepare a substantial rebuttal case.
Under the fourth Southern States factor, it is undeniable that the experts would offer important testimony. However, given the circumstances of Defendants’ disregard of their Rule 26(a)(2) disclosure obligations, this factor weighs against excusing Defendants’ failure to disclose. See Southern States, 318 F.3d at 598-99 (“‘[t]he fact that the expert’s testimony regarding the paint formula might have been helpful to [Southern States’] case in the eyes of the jury also points out why it should have been disclosed in a timely manner to [Sherwin-Williams]’” (citation omitted)).
Regarding the fifth Southern States factor, Defendants have not offered “[a]n explanation for [their] failure to disclose” their wish to use the three medical experts.
2(...continued) “rebuttal” evidence, essentially arguing that Plaintiffs should bear the burden of Defendants’ own failure to signal their intent to make use of this testimony when it was disclosed by Corizon, as required by Rule 26(a)(2)(D)(ii).
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Given that the VDOC Defendants have not met their burden to establish that their motion to belatedly supplement their Rule 26(a)(2) expert disclosures is either substantially justified or harmless, I will impose the “automatic sanction” of Rule 37(c)(1), and the testimony will be excluded. See, e.g., Wilkins, 751 F.3d at 223 (finding “no abuse of discretion in the district court’s exclusion of Dr. Voskanian as an expert witness”); Hoyle v. Freightliner, LLC, 650 F.3d 321, 329-30 (4th Cir. 2011) (affirming district court’s determination striking witness declaration and precluding the plaintiff’s reliance thereon in opposing defendants’ summary judgment motion where plaintiff failed to supplement her Rule 26(a)(1) disclosures to identify declarant as a potential witness until two months after close of discovery and subsequent to the filing of defendants’ motion); Carr v. Deeds, 453 F.3d 593, 604-05 (4th Cir. 2006) (affirming exclusion of plaintiff’s proffered expert witness in light of plaintiff’s failure to provide disclosures required by Rule 26(a)(2)); Saudi, 427 F.3d at 278-79 (same); Southern States, 318 F.3d at 598-99 (same).
IV. To the extent Defendants seek to excuse their failure to disclose by characterizing the testimony they would elicit from the excluded witnesses as “rebuttal” evidence, I am not persuaded. Defendants assert that, if Plaintiffs intend to present expert testimony at trial concerning the actions of persons other than the VDOC Defendants as those actions relate to the claim of inadequate medical care, then VDOC Defendants request that this Court permit them to designate Chad Zawitz, M.D., Kaveh Ofogh, M.D., and Archie Malloy, R.N., as expert witnesses for the sole purpose of rebutting or contradicting such testimony. As the complaint, amended complaint, numerous motions, and other filings in this case (including Defendants’ own filings and my opinions) have repeatedly stated, Plaintiffs complain
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that Defendants have been deliberately indifferent to constitutionally deficient medical care at the Fluvanna Correctional Center for Women that has been provided by medical care contractors hired by the VDOC. It has been integral to Plaintiffs’ complaint from the time it was filed that Plaintiffs’ claims concern “the actions of persons other than the VDOC Defendants as those actions relate to the claim of inadequate medical care.” Furthermore, Plaintiffs’ timely filed expert report is unequivocal on this point. Meeting and responding to this evidence is fundamental to Defendants’ case-in-chief, and Defendants’ characterization of the three additional medical experts as “rebuttal” evidence is unconvincing. Indeed, if Defendants needed the testimony for the purpose of “[c]ontradict[ing] or rebut[ting] evidence of the same subject matter identified by another party under Rule 26(a)(2)(B) or (C),” they should have signaled their intent to make use of this testimony when it was disclosed by Corizon. See Fed. R. Civ. P. 26(a)(2)(D)(ii).
In the Fourth Circuit, rebuttal evidence is evidence provided by a party “to explain, repel, counteract, or disprove facts given in evidence by the opposing party.” United States v. Moore, 532 F. App’x 336, 338 (4th Cir. 2013). “[A] party may not use rebuttal as an attempt to introduce evidence that he should have introduced in his case-in-chief.” Steele v. Kenner, 129 F. App’x 777, 780 (4th Cir. 2005); see also Peals v. Terre Haute Police Dep’t., 535 F.3d 621, 630 (7th Cir. 2008) (“[t]estimony offered only as additional support to an argument made in a case in chief . . . is improper on rebuttal”); In re C.R. Bard, Inc., MDL No. 2187, 2013 WL 2432861 (S.D. W.Va. June 4, 2013) “[A] party may not offer testimony under the guise of ‘rebuttal’ only to provide additional support for his case in chief.”).
“Rebuttal” evidence has been defined by the Fourth Circuit as “evidence . . . introduced to counter new facts presented in the [adversary’s] case in chief,” including either “surprise
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evidence” presented by the other party or “evidence unavailable earlier through no fault of the plaintiff.” Allen v. Prince George’s County, Maryland, 737 F.2d. 1299, 1305 (4th Cir. 1984) (emphasis added). Allen involved allegations of discriminatory hiring by the defendant county in violation of federal law. Id. at 1301. During the trial, the district court rejected the plaintiffs’ belated attempt to offer expert testimony and new statistics regarding the defendant county’s hiring practices. Id. at 1305. Affirming the trial court’s determination, the Fourth Circuit concluded that “the [plaintiffs] had a chance to decide before trial what statistics to use” and “they should not be allowed to change their litigation strategy on rebuttal.” Id. According to the Fourth Circuit, rebuttal evidence typically consists of evidence responding to “surprise” revelations during the other party’s case-in-chief, or evidence that was unavailable during the proffering party’s case-of chief through no fault of its own, and the evidence proffered as “rebuttal” by the plaintiffs met neither criterion. Id. Instead, the Court concluded that the rebuttal phase of trial was “too late” for the appellants to come up with new expert testimony, and that “the time to do so was when they presented their case,” because the evidence in question solely supported their case-in-chief. Id.
Here, as in Allen, Defendants attempt to characterize evidence that plainly belongs in their case-in-chief as “rebuttal,” but this is an argument for which they do not offer any legal support. Any expert testimony offered by the Corizon medical experts would do nothing more than support the VDOC’s position in this litigation that the medical care provided at FCCW does not violate Eighth Amendment standards. As such, the their testimony would be admissible only as evidence constituting a fundamental part of the VDOC’s case-in-chief; not as “rebuttal” to the opinions offered by the Plaintiffs’ expert. As explained in Allen, there is nothing “new” about the Corizon expert witnesses’ testimony that would allow it to be properly classified as
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“rebuttal.” Corizon timely designated its medical experts pursuant to the scheduling orders for use in Corizon’s case-in-chief, and the substance of their testimony regarding the medical care provided to Plaintiffs is proper only as an aspect of Defendants’ case-in-chief. For that matter, Defendants cannot claim that testimony from these belatedly disclosed experts is permissible “rebuttal” evidence based on either “surprise” or prior unavailability. Allen, 737 F.2d. at 1305. As discussed above, the nature and substance of Plaintiffs’ claims have been apparent since the complaint was filed in July 2012, and Dr. Greifinger’s expert opinions were disclosed to Defendants on April 25, 2014. Corizon disclosed its expert witnesses and the substance of their opinions to Plaintiffs and Defendants on June 13, 2014 (more than three months prior to the filing of the instant motion). As I have already discussed, Defendants did not make a timely attempt to avail themselves of these witnesses’ opinions. The Corizon medical experts were not “unavailable” to the VDOC Defendants, and, as such, the testimony these witnesses would provide does not constitute “rebuttal” evidence.
V. Accordingly, Defendants’ motion for leave to supplement their Rule 26(a)(2) disclosure of expert testimony will be DENIED. An appropriate order accompanies this memorandum opinion. ENTERED this _2_2_n_d____ day of October, 2014.
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 Case 3:12-cv-00036-NKM Document 201 Filed 11/25/14 Page 1 of 47 Pageid#: 3951

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

Plaintiffs, all prisoners residing at Fluvanna Correctional Center for Women (“FCCW”), a
facility of the Commonwealth of Virginia Department of Corrections (the “VDOC”), filed this
action pursuant to 42 U.S.C. § 1983 alleging that Defendants violated Plaintiffs’ constitutional rights
under the Eighth Amendment to be free from cruel and unusual punishment.1 Plaintiffs assert that
FCCW fails to provide adequate medical care and that Defendants are deliberately indifferent to this
failure. Plaintiffs request a declaratory judgment and preliminary and permanent injunctions
ordering FCCW to provide adequate medical care to Plaintiffs and all other similarly situated
women residing at FCCW. The matter is set for a two-week bench trial to commence on December
1, 2014.
The case is presently before me on consideration of the parties’ cross-motions for summary
1 This case has a long procedural history. Suffice it to say that the remaining Defendants, or the “VDOC Defendants,” are Harold W. Clarke, the Director of the VDOC; David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling, VDOC’s Director of Health Services; and the Warden at FCCW. I will also refer to Defendants as “the VDOC.”
Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, I have certified a class consisting of Plaintiffs and all other women who currently reside or will in the future reside at FCCW and who have sought, are currently seeking, or will seek adequate, appropriate medical care for serious medical needs, as contemplated by the Eighth Amendment to the Constitution of the United States. See docket nos. 188 & 189.

Case 3:12-cv-00036-NKM Document 201 Filed 11/25/14 Page 2 of 47 Pageid#: 3952
judgment. For the reasons stated herein, I will grant Plaintiffs’ motion seeking partial summary judgment on two key elements of their complaint – that is, that Defendants bear a non-delegable “constitutional duty to provide adequate medical treatment to” Plaintiffs, West v. Atkins, 487 U.S. 42, 56 (1988), and that the specific health problems and conditions of which the named Plaintiffs complain constitute “serious medical needs,” “deliberate indifference to” which is “proscribed by the Eighth Amendment,” Estelle v. Gamble, 429 U.S. 97, 104 (1975). Granting Plaintiffs’ motion necessarily means that Defendants’ motion must, to some extent, be denied, given that Defendants contend, among other things, that they have contractually delegated their duty to provide adequate medical care; moreover, my review of the record leads me to conclude, as explained herein, that I must deny Defendants’ motion in its entirety.
I. STANDARD OF REVIEW Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment (or partial summary judgment) “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must be “‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). However, if the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view
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the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
When faced with cross-motions for summary judgment, the standard is the same. The court must consider “each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quotations omitted). If the court finds that there is a genuine issue of material fact, both motions must be denied, “[b]ut if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment.” Trigo v. Travelers Commercial Ins. Co., 755 F. Supp. 2d 749, 752 (W.D. Va. 2010). The mere existence of “some” factual disputes will not defeat summary judgment; the dispute must be “genuine” and concern “material” facts, Anderson, 477 U.S. at 247–248; see also Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); in other words, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Only legitimate disputes over facts that might affect the outcome of the suit under the governing law fall within that category. Id.; see also Fields v. Verizon Servs. Corp., 493 Fed. App’x 371, 374 (4th Cir. 2012).
II. FACTUAL BACKGROUND A.
Operated by the VDOC, FCCW houses approximately 1,200 women, a majority of whom are 35 years of age or older and are serving median sentences of twenty years. FCCW includes a medical building in which medical, dental, and mental health services are provided. FCCW is the
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prison within the VDOC system purportedly able to provide the most complete medical care to women prisoners, and it is where women with serious medical problems are sent in the first instance, or to which they are transferred from other VDOC facilities for the purpose of receiving a supposedly “heightened” level of care.
Since FCCW opened in 1998, the VDOC has contracted with outside medical providers for health care at the facility. Since at least November 2011, a frequently changing series of private, for-profit corporations have contracted to provide almost all medical, dental, and mental health services to the women at FCCW, with limited exceptions for services provided directly by the VDOC. The new contractor generally re-hires the medical personnel employed by the prior contractor. Frederick Schilling, the VDOC’s Health Services Director, testified that the price bid is the primary factor in the selection of the winning contractor from among competing bidders. Regarding the procurement process that resulted in Armor’s replacement of Corizon in 2011, he stated, “The number one difference [between the winning and losing bidder] was price.”
Beginning in 2011, the VDOC sought bids for the FCCW contract based on “capitated financing,” in which the contractor sets up a pricing schedule that fluctuates monthly, based on the facility’s average daily population. “Capitated financing” allows the VDOC to predict, with some degree of certainty derived from population forecasts, how much it will spend on medical care over the life of the contract. Prior to the 2011 change, contracts were based upon a risk/reward-sharing model, under which the VDOC and the private contractor shared equally in the risk that medical expenses might exceed expectations (up to a certain pre-determined level, where 100% of the risk falls back upon the VDOC).
Under the capitated financing scheme, also known as a “full-risk contract,” the contractor bears the full risk that health care costs may exceed the per prisoner price dictated by the pricing
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schedule in the contract.2 The capitated financing model was used in the 2011 contract, the 2013 contract, and the new contract that is supposed to have gone into effect on October 1, 2014. The contractor using the capitated system receives a fixed amount of money per prisoner, and its profit increases as the cost of care it provides to the prisoners decreases, regardless of how much or how little care is provided to the prisoners.
The VDOC promulgates standard operating procedures for the provision of health care within its prisons, including those prisons, such as the FCCW, where health care services are rendered by private contractors. Private contractors – for example, Corizon Health, Inc. (“Corizon”) and Armor Correctional Health Services, Inc. (“Armor”) (collectively, the “contractors”), both of which were formerly defendants in this case – have their own procedures, but they must also follow the VDOC’s procedures. Additionally, a contractor’s doctors must use the VDOC formulary for prescribing medication. Although a series of private health care contractors has come and gone in rotating fashion during the sixteen years since FCCW opened, the policies, practices, and many of the personnel providing care have largely remained the same. According to individual health care providers who have worked at FCCW, a change of contractor only rarely causes a substantive change in the provision of care; rather, only certain administrative procedures and the nature or volume of paperwork actually change.
The warden at FCCW is the highest-ranking VDOC official at the facility. The warden has authority over all staff, including medical personnel. Even when there is a private medical contractor, the warden remains ultimately responsible for the operation of the facility, including health care treatment and security. The VDOC determines the medical accommodations prisoners
2 There are some narrow exceptions where the VDOC bears the full cost, e.g., for treatments related to the hepatitis C virus, HIV/AIDS, and hemophilia.
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may receive, and medical staff has no authority to override VDOC criteria. B.
I have reviewed the allegations and the evidence concerning Plaintiffs’ medical conditions in several opinions I have issued in the course of this case. The following is but a sampling, and is not an exhaustive or conclusive list, of Plaintiffs’ significant health problems. I include it here as a factual prelude to my finding that Plaintiffs have carried their summary judgment burden to show that the specific health problems and conditions of which they complain constitute “serious medical needs,” “deliberate indifference to” which is “proscribed by the Eighth Amendment.” See Estelle, supra, 429 U.S. at 104.
Cynthia Scott has sarcoidosis, a chronic and life-threatening disease involving cell inflammation in and around vital organs such as her lungs, liver, spleen, pancreas, and eyes. She has also experienced deep-vein thrombosis, i.e., a blood clot that formed in a vein deep in the body. In 2012, a fragment of the blood clot in her left leg traveled to her lungs, resulting in a pulmonary embolism.
Marguerite Richardson has Hepatitis C (“HCV”). Due to liver damage related to her Hepatitis C, she suffers from elevated ammonia levels and symptoms of hepatic encephalopathy, such as memory loss, related to the poor functioning of her liver’s ability to remove toxins from her blood. Ms. Richardson has also been diagnosed with Methicillin-resistant Staphylococcus aureus (“MRSA”), a highly contagious form of bacterial infection that may be fatal if left untreated.
Rebecca Scott has been profoundly deaf since childhood and needs hearing aids to communicate and understand commands from security staff at FCCW. She also has asthma and frequently needs to use an inhaler to breathe.
Bobinette Fearce suffers from degenerative disc disease affecting her spine, carpal tunnel -6-

Case 3:12-cv-00036-NKM Document 201 Filed 11/25/14 Page 7 of 47 Pageid#: 3957
syndrome in both her wrists, and chronic pain related to her disc and joint problems. Ms. Fearce also has incontinence and chronic kidney disease.
Hundreds of other women incarcerated at FCCW suffer from serious medical conditions that are likely to cause significant deterioration in their health, permanent functional impairment, or death if untreated or treated improperly. For example, many women, including D.E, A.M., T.G., E.G., K.C., and M.W., have diabetes.3 E.G., L. S-M, D.D., L.G., and B.E.G. have each been treated for cancer. M.W. has suffered a series of amputations related to untreated blood clots.
Indeed, more than half of FCCW’s general population has long-term health conditions or illnesses justifying the need for chronic care treatment and monitoring.
Debbie Daley was diagnosed with colorectal cancer shortly after arriving at FCCW in July 2013. In November 2013, Ms. Daley’s oncologist at the University of Virginia Hospital Medical Center (“U.Va.,” or “U.Va. Hospital”) said Ms. Daley needed chemotherapy. Due to scheduling delays by FCCW medical personnel and transportation cancellations by FCCW staff, Ms. Daley did not begin chemotherapy treatment until eight months later in July 2014. When Ms. Daley arrived for her appointment at U.Va. on July 2, 2014, the U.Va. doctors found her febrile, septic, and in great pain due to a cancer-related infection. Ms. Daley was admitted to the U.Va. Hospital for several weeks to treat her infection with IV antibiotics. Chemotherapy soon followed.
Ms. Daley’s U.Va. oncologist, Dr. Erica Ramsdale, was so concerned about Ms. Daley’s condition upon her arrival at the hospital on July 2, 2014, that she contacted the U.Va. Ethics Consult Service (“U.Va. Ethics”) to ask for guidance in dealing with what Dr. Ramsdale considered to be medical neglect. Dr. Ramsdale accepted U.Va. Ethics’ recommendation to declare Ms. Daley
3 Prisoners who are not named plaintiffs, but who have submitted declarations describing the medical failures they have experienced, are referred to herein by their initials.
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an “unsafe discharge” unless FCCW would agree¸ inter alia, to provide prompt transportation to any appointments, appropriate pain treatment, compliance and follow-through with chemotherapy treatments, and antibiotic treatment of further infections.
By letter from counsel, Ms. Daley complained to the VDOC about her medical treatment at FCCW and requested an investigation of the delays in her chemotherapy treatment and the lack of proper follow-up care for her infection, cancer, and pain management as ordered by the physicians at U.Va. The VDOC responded that “VDOC officials are aware of the issues concerning Ms. Daley’s medical treatment”; however, “VDOC officials do not interfere with or otherwise direct the medical treatment and care provided by Corizon staff at FCCW. Accordingly, decisions concerning Ms. Daley’s medical treatment and care are not made by VDOC officials.” The VDOC further indicated that “VDOC officials cannot ‘ensure that Ms. Daley [will] remain at UVa hospital until her course of antibiotic treatment for sepsis is complete’ or ‘take action to stop [the medical provider’s] refusal to provide Ms. Daley the antibiotics ordered by the oncologist at UVa . . . .’” The VDOC’s letter does commit that it will provide transportation to and from outside medical appointments.
III. PLAINTIFFS’ MOTION A.
“To incarcerate, society takes from prisoners the means to provide for their own needs. . . . A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in a civilized society.” Brown v. Plata, 563 U.S. ___, ___, 131 S. Ct. 1910, 1928 (2011); see also Estelle, supra, 429 U.S. at 103 (acknowledging as an “elementary principle[] . . . the government’s obligation to provide medical care for those whom
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it is punishing by incarceration.”); Va. Code.§ 53.1-32.A (“It shall be the general purpose of the state correctional facilities to provide proper . . . medical and mental health care and treatment . . . [to] prisoners committed or transferred thereto.”).
The VDOC has opted to provide medical care to State prisoners by selecting, through a competitive bidding process, a private, for-profit company with which the VDOC contracts to render medical care services at designated state correctional facilities, including FCCW. However, it is well settled that choosing to meet the duty to provide prisoners with medical care through the services of a private contractor has no bearing on VDOC’s constitutional and statutory responsibility to assure that the care provided is adequate and appropriate to meet prisoners’ legitimate needs.
The Supreme Court of the United States held in West v. Atkins, 487 U.S. 42, 56 (1988), that “[c]ontracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.” Consistent with this principle, the lower courts of the United States have repeatedly concluded that State and local governments may not insulate themselves from Eighth Amendment claims premised upon allegations of deficient medical care by delegating responsibility for the provision of medical care to third parties.
For example, in Ancata v. Prison Health Services, Inc., 769 F.2d 700 (11th Cir. 1985), the United States Court of Appeals for the Eleventh Circuit expressly rejected the premise that a county government’s delegation of its obligation to afford medical care to inmates at the county jail to a contractor could shield the county from legal responsibility for claims alleging deficient care, reasoning, id. at 705, that
[t]he federal courts have consistently ruled that governments, state and local, have an obligation to provide medical care to incarcerated individuals. See Estelle, supra. This duty is not absolved by contracting with an entity such as Prison Health Services.
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Although Prison Health Services has contracted to perform an obligation owed by the county, the county itself remains liable for any constitutional deprivations caused by the policies or customs of the Health Service. In that sense, the county’s duty is non-delegable. See also Gil v. Vogliano, 131 F. Supp. 2d 486, 493 (S.D. N.Y. 2001) (“[A] municipality’s duty to provide medical care to inmates is non-delegable and is not absolved by contracting with a third-party to provide care.”): Covington v. Westchester County Jail, 1998 WL 26190, at *4 (S.D. N.Y. Jan. 26, 1998) (concluding that county jail faced direct, not vicarious, liability for any constitutional violations committed by its medical care contractor under the “non-delegable duty theory of Ancata”); Bryant v. Maffucci, 729 F. Supp. 319, 324 (S.D. N.Y. 1990) (citing Ancata, holding that, “[a]lthough defendants deny any substantive responsibility for the medical treatment of inmates, and deny any control over or direct responsibility for Correctional Health Services, they may not avoid liability by delegating the duty to provide medical care”). The VDOC contends that its medical care providers, Armor and Corizon, and their respective employees, “are and have been independent contractors, not agents of VDOC,” deriving this argument from the decision of the Supreme Court of Virginia in Ogunde v. Prison Health Servs., Inc., 274 Va. 55 (2007) (“Ogunde II”). The Court determined in Ogunde II that Prison Health Services (“PHS”) – the corporate predecessor of Corizon – and its employees were “independent contractors” in rendering medical care at a State correctional facility pursuant to a contract with VDOC, rather than an acting agent of the State. Id. at 62. Relying upon this holding, the VDOC argues that the rendering of health care services at FCCW is and has been under the control of the Contract Providers, not VDOC, and the Contract Providers have and continue to supervise and direct their employees at FCCW.
Therefore, the Contract Providers are and have been independent contractors, not agents of VDOC. As such, VDOC is not liable for the acts or omissions of the
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Contract Providers and their employees at FCCW. The VDOC’s attempted reliance upon Ogunde II is misplaced. Neither the Commonwealth nor the VDOC were named as a party defendant in Ogunde II, and the plaintiff in that case did not assert any constitutional claim against the VDOC premised upon allegations of deficient care on the part of the VDOC’s medical care contractor in violation of the Eighth Amendment. The question of whether the VDOC bore ultimate legal responsibility for sub-standard medical care allegedly rendered to the plaintiff by the VDOC’s contractor was not presented in Ogunde II. Quite to the contrary, the Court considered the question of PHS’s status only in connection with its evaluation of the contractor’s defense that it was acting as an agent of the State and therefore should be shielded from exposure to the plaintiff’s medical malpractice claim based upon principles of sovereign immunity. See 274 Va. at 60-63. The Court determined that, because PHS was an independent contractor, not a state agent, it was not shielded by sovereign immunity from potential malpractice liability. Id. at 61-62. The reasoning and result in Ogunde II have no bearing whatsoever on the issues presented here. Controlling Eighth Amendment jurisprudence provides that contracting with a third party to provide medical care to a governmental entity’s prison population does not relieve the government of its constitutional duty under the Eighth Amendment to ensure the adequacy of the care, regardless of how the third party is characterized. See West, supra, 487 U.S. at 56 (“Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical care to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.”); Ancata, 769 F.2d at 705 (the government’s constitutional obligation to provide prisoners with adequate medical care is non-delegable). In West, the Supreme Court expressly observed that, “[w]hether a physician is on the state payroll or is paid by contract, the
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dispositive issue concerns the relationship among the State, the physician, and the prisoner,” 487 U.S. at 56, and noted that, were the law otherwise, “‘the state [would] be free to contract out all services which it is constitutionally obligated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to “private” actors, when [the rights] have been denied,’” id. at 56 n. 14 (citation omitted). Accordingly, whether Armor or Corizon has functioned as an “independent contractor” under Virginia law is not relevant in this case; under federal constitutional principles that apply to this case, their status cannot shield the VDOC from potential liability for violations of the Eighth Amendment resulting from the contractors’ provision of sub-standard medical care.
Moreover, where a State effectively cedes final decision-making authority with respect to the provision of or failure to provide medical care to a third-party contractor, the contractor’s policies and decisions effectively become and constitute the policies and decisions of the State. See, e.g., Ancata, 769 F.2d at 705 n. 9 (“where a governmental entity delegates the final authority to make decisions then those decisions necessarily represent official policy” (citing Hearn v. City of Gainesville, 688 F.2d 1328, 1334 (11th Cir. 1982)); King v. Kramer, 680 F.3d 1013, 1020 (7th Cir. 2012) (county could not “shield itself from § 1983 liability by contracting out its duty to provide medical services . . . [because] the private company’s policy becomes that of the County if the County delegates final decision-making authority to it” (citation omitted)).
Evidence in this case supports a conclusion that the VDOC has ceded final decision-making authority with respect to some medical care judgments to its medical care contractor. I have implicitly recognized in previous opinions in this case that the ultimate legal responsibility for (and potential liability associated with) the provision of medical care at FCCW lies with the VDOC, notwithstanding that day-to-day medical services are contractually provided. I now hold, as a matter
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of law, that the VDOC has a non-delegable to provide to Plaintiffs – indeed, to all prisoners within its custody – medical care that meets constitutional minimum standards.4
B. At the outset of this opinion, I cited Estelle v. Gamble, wherein the Supreme Court “conclude[d] that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” 429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). In accordance with this principle, the progeny of Estelle recognize that a threshold element of an Eighth Amendment claim premised upon allegations of deficient medical care is the claimant’s showing that the health problem of which she complains involves a “serious medical need.” See, e.g., Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008); Brice v. Virginia Beach Correctional Center, 58 F.3d 101, 104 (4th Cir. 1995); Taylor v. Barnett, 105 F. Supp. 2d 483, 487 (E.D. Va. 2000) (“[f]irst, [the plaintiff] must demonstrate a sufficiently serious medical need” (citations omitted)). This element of the Eighth Amendment analysis is evaluated under an objective standard. Brice, 58 F.3d at 104 (“[t]o establish . . . a constitutional violation, a claimant must prove that, objectively assessed, he had a ‘sufficiently serious’ medical need to require medical treatment” (citations omitted)); cf. De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (“De’lonta II”) (“we first resolve that De’lonta has alleged an
4 I note that Defendants’ response in opposition to Plaintiffs’ motion (as well as Defendant’s own motion for summary judgment and their response in opposition to Plaintiffs’ motion for class certification) appears to have abandoned their “independent contractor” theory in favor of their fallback position that they are entitled to rely on the judgment of those directly providing medical care to FCCW inmates. Indeed, Defendants concede that the “VDOC has a duty to make adequate medical care accessible to its offenders,” but qualify that concession with the claim that “they are also entitled to rely on the judgment of the medical providers at its facilities.” However, this argument is valid only to the extent that prison officials invoking the argument did not “tacitly authorize” and were not otherwise “deliberately indifferent” to the alleged sub-standard medical care. See, e.g., Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990). I will discuss the alternative argument in my analysis of Defendants’ motion for summary judgment.
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objectively serious medical need”). In Iko, the United States Court of Appeals for the Fourth Circuit cited the following standard
for determining the presence or absence of a “serious medical need”: “[b]eginning with the objective component [of the Eighth Amendment analysis], a ‘serious . . . medical need’ is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognized the necessity of a doctor’s attention.’” 535 F.3d at 241 (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).
In the instant case, the undisputed material facts establish that the Plaintiffs have serious medical needs, i.e., medical problems that (i) have been diagnosed by physicians as mandating treatment; (ii) are (in at least some instances) so obvious that even a lay person would easily recognize the necessity of a doctor’s attention; (iii) absent treatment, could result in further significant injury or the unnecessary and wanton infliction of pain; (iv) a reasonable doctor or patient would find important and worthy of comment or treatment; (v) significantly (and adversely) affect each of the Plaintiffs’ daily activities; or (vi) involve the existence of chronic and substantial pain. See, e.g., Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014); Hayes v. Snyder, 546 F.3d 516, 522-23 (7th Cir. 2008); Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997); see also Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14, 18 (1st Cir. 1995) (serious medical need is “one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would recognize the necessity for a doctor’s attention”); Kuhne v. Fla. Dep’t of Corr., 745 F.3d 1091, 1096 (11th Cir. 2014) (same); Randle v. Alexander, 960 F. Supp. 2d 457, 480 (S.D. N.Y. 2013) (“In determining seriousness of a medical condition, courts look to certain factors, including: (1) ‘whether a “reasonable doctor or patient would find [it] important and worthy of comment”; (2) whether the condition “significantly affects an individual’s daily activities”; (3) and
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whether it causes “chronic and substantial pain.”’” (quoting Chance v. Armstrong, 143 F.3d 968, 702 (2d Cir. 1998))).
To underscore the seriousness of Plaintiffs’ medical needs, I will briefly reiterate some of their documented conditions.
In August 2010, Cynthia Scott was diagnosed with sarcoidosis, a potentially life-threatening chronic inflammatory disease that can affect the body’s vital organs including the heart, lungs, liver, spleen, pancreas and eyes. In March of 2012, Ms. Scott began experiencing serious swelling in her left leg that was ultimately determined to involve a blood clot (deep-vein thrombosis), resulting in a pulmonary embolism in connection with which she was hospitalized on an emergency basis. In 2013, Ms. Scott wore a Holter monitor for 24 hours on two occasions to evaluate the condition of her heart and was advised that the results were abnormal. In 2014, the results of urinalysis indicated that Ms. Scott confronts a risk of kidney failure.
Marguerite Richardson first learned that she was infected with HCV in 1994. HCV is a chronic disease that may progress over the course of several decades. Since 2012, Ms. Richardson has experienced elevated levels of ammonia in her blood stream and occasional symptoms of hepatic encephalopathy, including memory loss and disorientation. In late 2013, it was determined that Ms. Richardson may have cirrhosis of the liver attributable to her HCV. Ms. Richardson suffers from swelling and painful open sores (“venous stasis ulcers”) on the back of her lower left leg that were diagnosed, in the spring of 2012, to be infected with MRSA, a potentially-contagious form of bacterial infection which may be fatal if not properly treated.
Rebecca Scott has a severely deformed ingrown toenail on the big toe of her right foot that periodically becomes inflamed, infected and extremely painful, making it very difficult for Ms. Scott to walk. Ms. Scott has been profoundly hearing-impaired since early childhood, a severe disability
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that necessitates her use of functioning hearing aids in order to communicate and hear and respond to commands. Ms. Scott has chronic asthma and requires the use of an inhaler in order to breathe properly.
Bobinette Fearce suffers from a host of significant medical problems including, but not limited to the following: degenerative disc disease affecting her neck and spine and causing continuous and debilitating chronic back pain; bi-lateral carpal tunnel syndrome in her wrists; a bladder condition causing constant incontinence; and chronic kidney disease.
Additionally, the named Plaintiffs have offered the sworn Declarations of a host of additional FCCW class members who have likewise attested to significant health problems and concerns from which the Declarants suffer that also constitute or involve “serious medical needs,” such as deep-vein thrombosis, colorectal cancer, breast cancer, congestive heart failure, HIV, cervical cancer, chronic rectal bleeding and various types of diabetes.
Many of the ailments described herein have been diagnosed by doctors as requiring treatment, e.g., Cynthia Scott’s sarcoidosis and deep-vein thrombosis; Ms. Richardson’s HCV and MRSA; Rebecca Scott’s asthma; and Ms. Fearce’s degenerative disc disease, bi-lateral carpal tunnel syndrome, and kidney disease. Cynthia Scott’s severely swollen leg associated with her blood clot, Ms. Richardson’s open sores on her left leg, and Rebecca Scott’s severely deformed toenail are all conditions that even a lay person would recognize as meriting a doctor’s attention. Rebecca Scott’s hearing impairment and asthma, and Ms. Fearce’s carpal tunnel syndrome and incontinence no doubt affect their respective daily activities in a significant way. Virtually all of Plaintiffs’ maladies involve chronic and substantial pain and, absent treatment, could give rise to further significant injury and the unnecessary infliction of pain. Their health problems are of a sort that an objectively reasonable patient would deem important and worthy of comment and treatment. Moreover, upon
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his comprehensive review of Plaintiffs’ primary medical records (as they have been maintained at
FCCW and by the VDOC), as well as his review of the deposition testimony and discovery
responses, Plaintiffs’ medical expert witness, Dr. Greifinger,5 found and concluded that the health
problems and concerns of which the Plaintiffs complain constitute “serious medical needs” of which
the VDOC Defendants are aware.
Indeed, there has been no contention otherwise by Defendants, given that they concede that
“Plaintiffs have submitted their expert’s report finding that they have serious medical needs,” and
those findings remain unchallenged. Rather, Defendants attempt to take issue with Plaintiffs’
proposition that the numerous additional FCCW prisoners who have submitted Declarations
describing their own medical issues (and problematic encounters with the medical care delivery
system at FCCW) also have “serious medical needs.” Defendants contend that the Plaintiffs “have
failed to demonstrate that their declarants at FCCW have serious medical needs.” This assertion is
wrong as a matter of fact;6 moreover, it is irrelevant, given that the Declarants are obviously
5 Plaintiffs’ expert, Dr. Robert Greifinger, a physician licensed by the State of New York, has extensive experience in correctional healthcare, including the following: managing the provision of medical care at Riker’s Island, New York City’s main jail complex, from 1987 to 1989; serving for six years as the Chief Medical Officer for the New York State Department of Corrections, where he had overall responsibility for the provision of all inmate health services for a system involving 68,000 prisoners; serving as a court-appointed monitor overseeing medical care in the jails in Philadelphia, Pennsylvania; Fulton County, Georgia; DeKalb County, Georgia; Albuquerque, New Mexico; and for the State of Alabama’s women’s prison from 2006 to 2009. Dr. Greifinger is currently the court-appointed monitor regarding medical care at the Metropolitan Detention Center in Albuquerque as well as at the Orleans Parish Prison in New Orleans, Louisiana, and he monitors multiple jail and prison correctional healthcare systems on behalf of the Civil Rights Division of the United States Department of Justice. Additionally, he serves as a consultant to the Office of Civil Rights and Civil Liberties of the U.S. Department of Homeland Security. Dr. Greifinger has authored or co-authored dozens of articles addressing correctional medicine published in peer-reviewed journals; and is the editor of, as well as the author of one chapter in, the Second Edition of Clinical Practice in Correctional Medicine (2006). He has been found qualified to testify as an expert witness with respect to correctional medical care standards and practices by courts in more than 60 cases from 2000 to the present.
6 As I have already observed, Plaintiffs’ motion for partial summary judgment is based upon the “serious medical needs” of the named Plaintiffs, and the VDOC Defendants have conceded this point. A finding that
(continued...)
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members of the Fed. R. Civ. P. 23(b)(2) certified class, of which the Declarants are clearly members. In sum, assessed by any objective test, Plaintiffs have serious medical needs. Accordingly,
I find that the Plaintiffs have satisfied the “serious medical needs” element of their Eighth Amendment claims as a matter of law.
IV. DEFENDANTS’ MOTION A.
Defendants’ opening bid is to contend that a one-year statute of limitations applies to Plaintiffs’ complaint, and that their claims are barred to the extent that they are premised upon underlying allegations of sub-standard medical care that pre-dates July 24, 2011, i.e., one year before Plaintiffs’ original complaint was filed. Defendants’ argument fails for several reasons.
First, the Supreme Court has held that the state limitations period for personal injury cases is applicable to § 1983 claims. See Wilson v. Garcia, 471 U.S. 261, 275-76 (1985) (a civil action filed pursuant to 42 U.S.C. § 1983 adopts the statute of limitations that the forum state uses for general personal injury cases); Owens v. Okure, 488 U.S. 235, 249–50 (1989) (same). Virginia applies a two-year limitations period for personal injury actions. See Va. Code § 8.01-243(A). Defendants contend that a different statute of limitations found in the Code of Virginia limits Plaintiffs’ claims. Section 8.01-243.2, “Limitations of actions by confined persons; exhaustion,”provides that
6(...continued) the Declarants have serious medical needs is not necessary in order for the Plaintiffs’ Motion to be granted. And, under the standards applied by the courts in Eighth Amendment deliberate indifference cases, the medical issues described by the Declarants are, as a matter of law, “serious medical needs.” Significantly, other than stating that the Declarants’ medical needs are not serious, the VDOC Defendants never substantively contend otherwise. As I remarked early in this opinion, it is well established that, in order to defeat a properly-supported motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
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[n]o person confined in a state or local correctional facility shall bring or have brought on his behalf any personal action relating to the conditions of his confinement until all available administrative remedies are exhausted. Such action shall be brought by or on behalf of such person within one year after cause of action accrues or within six months after all administrative remedies are exhausted, whichever occurs later. However, § 8.01-243.2 was enacted in 1998, and no federal court in Virginia has ever found that it applies to a prisoner’s civil rights claim in federal court; rather, every federal court in Virginia that has considered the argument has rejected it.7 See, e.g., Shelton v. Angelone, 148 F. Supp. 2d 670, 677 (W.D. Va. 2001) (holding that Virginia Code § 8.01–243(A) is the applicable statute of limitations for a prisoner’s civil rights action filed pursuant to 42 U.S.C. § 1983, not Virginia Code § 8.01–243.2). Moreover, Defendants’ statute of limitations argument wholly ignores the fundamental nature and substance of the Plaintiff’s Eighth Amendment claim. A merely cursory review of the second amended complaint (or any of the complaints) reveals that Plaintiffs brought suit to terminate an ongoing systemic pattern and practice of failure to provide constitutionally adequate medical care on the part of the VDOC and its contractual providers. Plaintiffs allege that the unlawful conduct was continuing as of the date the lawsuit was filed, and that it continues as of today. The particular episodes of deficient medical care alleged in the complaint are not invoked as separate claims for relief, seeking recovery on the basis of separate instances of compensable harm. On the contrary, the examples of alleged sub-standard care set forth in Plaintiffs’ pleadings – which are now supported by sworn declarations, deposition testimony, and other competent record evidence – are offered as corroboration for Plaintiffs’ assertion that the VDOC has engaged in an ongoing pattern
7 As for state courts, in Ogunde v. Commonwealth, 271 Va. 639 (2006) (“Ogunde I”), the Supreme Court of Virginia found that the Virginia Tort Claims Act’s (“VTCA”) statute of limitations applied, rather than the statute of limitations for personal actions brought by confined persons, despite the fact that the tort claim concerned conditions of confinement. Id. at 373. The Ogunde I Court relied on the fact that the VTCA is a self-contained act and incorporates its own statute of limitations. Id.
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and practice of wrongful, unconstitutional acts and omissions reflecting deliberate indifference to the serious medical needs of the prisoners residing at FCCW.
For decades, the Fourth Circuit has recognized, both within and outside the context of § 1983 litigation, that claims premised upon allegations concerning a continuing pattern of unlawful conduct that remains in effect when a lawsuit is filed are not barred by the statute of limitations, even if the alleged pattern commenced prior to an otherwise pertinent limitations period. See, e.g., A Society Without a Name v. Comm. of Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (“‘In general, to establish a continuing violation[,] the plaintiff must establish that the unconstitutional or illegal act was a fixed and continuing practice.’ In other words, if the plaintiff can show that illegal act did not occur just once, but rather ‘in a series of separate acts[,] and the same alleged violation was committed at the time of each act, then the limitations period begins anew with each violation.’” (quoting Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1166-67 (4th Cir. 1991)); see also Jersey Heights Neighborhood Ass’n v. Glendenning, 174 F.3d 180, 189 (4th Cir. 1999) (“[u]nder established law, a ‘continuing violation is occasioned by continual unlawful acts’” (dictum) (citation omitted)); Virginia Hosp. Ass’n v. Baliles, 868 F.2d 653, 663 (4th Cir. 1989) (“The district court found that the VHA had alleged an ongoing constitutional violation, and that the statute [of limitations] would not have begun to run until the violation ended. We believe this was correct.”), aff’d sub nom. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990); Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980) (reversing dismissal of employment discrimination action based on appellate court’s determination that “the Company’s alleged discriminatory violation occurred in a series of separate but related acts throughout the course of Jenkins’ employment. . . . Thus, the Company’s alleged discrimination was manifested in a continuing violation which ceased only at the end of Jenkins’ employment”); Eldridge v. Bouchard, 620 F. Supp. 678, 682-83 (W.D. Va. 1985)
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(“[T]he conduct which plaintiffs allege to be an unconstitutional denial of federally protected rights
is repetitive – beginning in 1974 and continuing to this day. . . . [T]his court finds that plaintiffs have
stated facts which indicate that the conduct alleged to be wrongful is continuing in nature by reason
of . . . defendants’ actions. Therefore, the Virginia statute of limitations does not bar this action.”)
(citation omitted)).
The “continuation violation” principle has been applied by federal courts in rejecting
statute-of-limitations defenses directed at the claims of prisoners alleging deliberate indifference to
their serious medical needs in violation of the Eighth Amendment. For example, in Baker v.
Sanford, 484 F. App’x 291 (11th Cir. 2012), the Eleventh Circuit reversed a lower court’s dismissal
of a prisoner’s claim based upon allegations of inadequate medical care to which he was subject at
a Florida prison dating from 2003, asserted in a lawsuit commenced in 2011. The district court held
that the claim was time-barred, applying Florida’s residual four-year statute of limitations, but the
Eleventh Circuit disagreed, reasoning as follows:
[A]n “allegation of a failure to provide needed and requested medical attention constitutes a continuing tort, which does not accrue until the date medical attention is provided.” Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir. 1980). The critical distinction in the continuing violation analysis is whether the prisoner complains “of the present consequences of a onetime violation, which does not extend the limitations period, or the continuation of that violation into the present, which does.” Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003) (internal quotation marks omitted).
Here, we conclude from the record that the district court erred in dismissing Baker’s complaint for failure to state a claim upon which relief could be granted because his claims were not barred by the four-year statute of limitations. Baker’s amended complaint alleged that although he specifically requested medical treatment for his ongoing fungal infection multiple times in 2007 and 2010, prison medical staff refused his requests. Further, he incorporated various grievance forms documenting these unsuccessful requests for treatment. Therefore, Baker properly alleged that the prison official’s prolonged failure to provide adequate medical treatment despite his repeated grievances constituted a continuous injury during the statute of limitations period.
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Id. at 293; see also Jervis v. Mitcheff, 258 Fed. App’x 3, 5-6 (7th Cir. 2007) (noting that deliberate indifference to a serious medical need is, by its nature, a continuing violation that ends only when treatment is provided or the inmate is released); Heard v. Sheahan, 253 F.3d 316, 318-19 (7th Cir. 2001) (reversing dismissal of prisoner’s deliberate indifference claim regarding medical care on limitations grounds, concluding that “the suit charges that the defendants inflicted cruel and unusual punishment on the plaintiff by refusing to treat his condition. The refusal continued for as long as the defendants had the power to do something about his condition, which is to say until he left the jail. Every day that they prolonged his agony by not treating his painful condition marked a fresh infliction of punishment that caused the statute of limitations to start running anew.”); Neel v. Rehberg, 577 F.2d 262, 264 (5th Cir. 1978); Wilson v. Groze, 800 F. Supp. 2d 949, 955 (N.D. Ill. 2011) (“As Heard suggests, an Eighth Amendment violation arising out of a defendant’s deliberate indifference to a prisoner’s serious medical needs is a continuing violation, and thus can accrue for as long as a defendant knows about a prisoner’s serious medical condition, has the power to provide treatment, and yet withholds treatment.” (citation omitted)).
Here, each of the named Plaintiffs has identified a continuing sequence of instances in which she alleges she has experienced sub-standard medical care at FCCW, reflecting an ongoing pattern of deliberate indifference to serious medical needs for which the Plaintiffs seek to hold the VDOC liable. For each Plaintiff, at least one of the instances alleged occurred within one year of the commencement of this lawsuit on July 24, 2012. Under these circumstances, Plaintiffs are permitted to support their timely claim with evidence of earlier examples of deficient medical care occurring more than one year before the date on which this case was filed. See, e.g., Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994) (“Statutes of limitations do not operate as an evidentiary bar controlling the evidence admissible at the trial of a timely-filed cause of action.”);
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Furr v. AT&T Techs., Inc., 824 F.2d 1537, 1543 (10th Cir. 1987) (“[d]iscriminatory acts occurring before the filing periods are relevant evidence of the continuing unlawful practice and its discriminatory intent, and are used by the courts to fashion a remedy” (citations omitted)).
The one-year statute of limitations invoked by the VDOC neither dictates the dismissal of any of Plaintiffs’ Eighth Amendment claims nor imposes an impediment to the scope of the evidence Plaintiffs may use to prove the VDOC’s continuing pattern and practice of deliberate indifference to Plaintiffs’ serious medical needs.
B. Defendants contend that they are entitled to summary judgment because “Plaintiffs failed to exhaust their administrative remedies concerning [their] factual allegations,” as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).8 My review of the facts disclosed by the record and the governing law discloses that Plaintiffs have satisfied the exhaustion requirement.
1. In the first instance, Defendants present incomplete and unreliable evidence to support its argument. Defendants’ argument that Plaintiffs have failed to exhaust their administrative remedies is an issue upon which Defendants bear the burden of proof, see, e.g., Jones v. Bock, 549 U.S. 199, 216 (2007); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005), and the inaccuracy and incompleteness of the VDOC’s own medical grievance records provides an insufficient foundation for Defendants’ motion.
8 In their answer to the original complaint, Defendants raised Plaintiffs’ alleged failure to exhaust the available administrative remedies, as required by the PLRA. However, Defendants subsequently filed a motion to dismiss and opposed Plaintiffs’ motion for class certification without advancing any failure-toexhaust arguments, raising the argument for the first time on summary judgment, more than two years after filing their Answer.
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Defendants rely upon an affidavit submitted by FCCW’s current Institutional Ombudsman and Grievance Coordinator, T. Swann, to assert that Cynthia Scott failed to submit “any regular grievances regarding any of the allegations in this civil action” before the case was filed on July 24, 2012. However, the record contains documents from Ms. Scott’s personal files, produced to Defendants in discovery, reflecting that, in late December 2010, Ms. Scott filed an Informal Complaint with FCCW raising the issues concerning improper medication of her sarcoidosis (in contravention of the instructions of the specialists who treated her condition at UVA Medical Center) that are expressly referenced in the pleadings. Then, dissatisfied with the response provided to her Informal Complaint, Ms. Scott submitted a Regular Grievance addressing the same subject-matter on January 10, 2011. This grievance was rejected by Ms. Swann’s predecessor in the position of FCCW Grievance Coordinator, Ms. Soukup, on the grounds (erroneous, as the record discloses) that Ms. Scott had failed to seek resolution of her concerns through the submission of an Informal Complaint.9 Ms. Scott sought review of that ruling through an appeal to the VDOC’s Regional Ombudsman, submitted on January 13, 2011, but the appeal was denied on the grounds that “[t]here is no further review of intake decisions,” as the VDOC’s own records reflect.
Defendants concede that Bobinette Fearce fully and properly exhausted one medical grievance “concerning ineffective treatment of her wrist” prior to the filing of this action, but states that Ms. Fearce failed to “advance[ ] any of the other remaining allegations in this lawsuit through Level II of the offender grievance procedure.” Defendants fail to observe, however, that Ms. Fearce filed
9 In late 2010 and early 2011, Ms. Soukup, the FCCW Grievance Coordinator, was on leave. A significant volume of medical grievances submitted by FCCW prisoners during this time did not receive a response. Cynthia Scott raised questions about why there was no response to grievances she had submitted with Mr. Sims, who was filling in for Ms. Soukup; on February 10, 2011, Mr. Sims responded that “[a]ll paperwork from the time that Ms. Soukup was out was returned to her for filing.” Upon Ms. Soukup’s return from her absence, she conducted a search for the grievances that had been submitted while she was away, but they were never located.
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Level I Regular Grievances (i) in December 2010 regarding her “severe pain due to degenerative joint disease and arthritis,” and (ii) in July 2010 concerning her request for additional diagnostic testing by her specialists at U.Va. regarding her neurological problems – and both of these subjects are detailed in the complaint. As reflected by the VDOC’s own records, the VDOC never provided a response to these Level I grievances, which is a precondition to a Level II appeal. Additionally, Ms. Fearce submitted medical grievances to which she never received any response (timely or otherwise) concerning her temporomandibular joint (TMJ) problem and her transfer to a distant building despite her myriad mobility and chronic pain challenges. Ms. Fearce pursued Level II appeals regarding these grievances, which were rejected by VDOC due to her failure to attach Level I responses, which she was never provided, or because VDOC contended she had failed to provide other required documentation.
Defendants contend that, prior to filing this lawsuit, Marguerite Richardson failed to initiate any regular grievances with respect to the medical problems she has alleged in the lawsuit. The record discloses that this assertion is not true. Regarding an abnormal, painful growth under her right rib-cage, Ms Richardson followed up on an unsuccessful Informal Complaint with a Regular Grievance on February 24, 2011, as reflected on the grievance log she contemporaneously maintained. She followed up on an Informal Complaint regarding her need for bathroom access due to incontinence caused by medications she was taking, to which no response was provided, with a Regular Grievance on February 14, 2011. With respect to FCCW’s failure to provide Ms. Richardson with adequate diagnostic information or any treatment of her Hepatitis C, she filed an Informal Complaint on January 19, 2011, and then challenged what she perceived to be an unsatisfactory response by filing a Regular Grievance dated February 2, 2011. Ms. Richardson suffers from severe chronic pain and numbness in her back and legs, regarding which she filed an
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Informal Complaint about the lack of diagnosis and inadequate pain medication on February 11, 2011. Following her receipt of an inadequate response, she filed a Regular Grievance on February 19, 2011.
In none of these instances was Ms. Richardson provided with a receipt upon the filing of her Regular Grievance, per the VDOC’s written operating procedure governing the grievance process. More importantly, none of the four referenced Regular Grievances was the subject of a timely (or any) written response from FCCW. On March 12, 2011, Ms. Richardson initiated Informal Complaints regarding FCCW’s failure to respond to her Grievances, and also wrote a letter to the Warden addressing this problem. When no response was forthcoming either from the Grievance Coordinator or the Warden, Ms. Richardson wrote an appeal letter to Robert White, the Regional Ombudsman, detailing her efforts and explaining her concerns. She attached handwritten Level II Grievance Appeals to this letter and requested that Mr. White forward them to the VDOC Health Services Administrator for disposition. Citing the absence of Level I responses, Mr. White declined to do so.
Defendants assert that, before this action was filed, Rebecca Scott “did not advance any regular grievances concerning the allegations in this lawsuit through Level II of the offender grievance procedure.” However, according to the VDOC’s own Offender Grievance Report concerning Ms. Scott, she submitted a Regular Grievance, in follow-up to a rejected Informal Complaint, on December 22, 2010, addressing her infected and painful ingrown toenail. Ms. Scott’s personal records reflect that she initiated a Level II appeal on or about February 4, 2011, after FCCW failed to respond to her Regular Grievance. Regardless of how this Level II appeal was resolved, it constitutes a full and proper exhaustion of the medical grievance process by Ms. Scott, contrary to Defendants’ contention.
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Accordingly, based on Plaintiffs’ documents and, in some instances, the VDOC’s own records, it is apparent that Ms. Swann’s Affidavit, and the VDOC’s representations based thereon, are incomplete, or inaccurate, or both. Thus, as a threshold matter, I cannot find that Defendants have met their burden of proof, which requires a definitive showing of Plaintiffs’ failure to exhaust all available administrative remedies.
2. The PLRA requires prisoners to exhaust “such administrative remedies as are available” before bringing an action in federal court regarding conditions of confinement. See Moore v. Bennette, supra, 517 F.3d at 725, quoting 42 U.S.C. § 1997e(a) (emphasis added). Based upon the common meaning of “available,” the Fourth Circuit, in Moore, held that an administrative remedy is not considered to have been available if a prisoner, through no fault of [her] own, was prevented from availing [herself] of it. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1227 (10th Cir. 2007); Kabaq v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). . . . [T]o be entitled to bring suit in federal court, a prisoner must have utilized all available remedies “in accordance with the applicable procedural rules,” so that prison officials have been given an opportunity to address the claims administratively. Having done that, a prisoner has exhausted [her] available remedies, even if prison employees do not respond. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Id. at 725 (citation omitted); accord Oliver v. Virginia Dep’t of Corr., 2010 WL 1417833, at *6 n. 10 (W.D. Va. April 6, 2010). “[W]hen prison officials prevent inmates from using the administrative process . . . the process that exists on paper becomes unavailable in reality.” Hill v. O’Brien, 387 F. App’x 396, 400 (4th Cir. 2010) (citing authorities). Thus, in considering Defendants’ failure-to-exhaust argument, I am “‘obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.’” Id. at 401 (citation omitted); see also Finley v. Gonzales, 2009 WL 382744, at *5 (E.D. Cal. Feb. 13, 2009) (“[E]xhaustion occurs when prison officials prevent exhaustion from
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occurring through misconduct or fail to respond to a grievance within policy time limits.” (citing
supporting decisions from Third, Fourth, Fifth, Sixth, Seventh, Eighth and Tenth Circuits)), report
and recommendation adopted, 2009 WL 982082 (E.D. Cal. April 9, 2009).
The record reflects that, in addition to the medical grievance Defendants admit was properly
exhausted by Bobinette Fearce, Ms. Fearce and the other named plaintiffs exhausted numerous other
medical grievances to the extent the VDOC’s “available” administrative remedies permitted.
Plaintiffs’ sworn Declarations and corroborating contemporaneous documentation, in some instances
clearly supported by the VDOC’s own grievance records, show the following:
• Cynthia Scott’s Regular Grievance concerning FCCW’s improper medication of her sarcoidosis was incorrectly rejected by the FCCW Grievance Coordinator on an erroneous basis, and that Ms. Scott’s appeal of this action to the VDOC Regional Ombudsman was denied;
• Ms. Fearce submitted Regular Grievances with respect to lack of adequate treatment for her chronic pain associated with her degenerative joint disease, arthritis and other neurological problems to which VDOC never responded, as confirmed by the VDOC’s own records, and she avers (with supporting documentation) that, in two other instances, no responses were provided to her in regard to Regular Grievances addressing her TMJ disorder and with respect to the adverse impact a building transfer had on her chronic pain-compromised mobility;
• Ms. Richardson submitted Regular Grievances in regard to the painful growth under her ribcage, her Hepatitis C, the denial of a medical profile granting her bathroom access, and her chronic back and leg pain, none of which received a response, resulting in VDOC’s refusal to process her attempted Level II appeals on the grounds that they lacked Level I responses that she was never provided; and
• Rebecca Scott pursued a Level II appeal, upon which VDOC apparently failed to act, after submitting a Regular Grievance concerning a lack of treatment of her painful, infected ingrown toenail to which FCCW never responded.
This evidence establishes Plaintiffs’ substantial efforts to exhaust the medical grievance
process with respect to precisely the same health problems and deficient care that are alleged in the
pleadings. Given the record and the arguments put forth in Defendants’ motion, I must conclude
that the VDOC frustrated Plaintiffs’ efforts by failing to respond to grievances as required by the
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VDOC’s own operating procedures. Thus, given the factual circumstances and the applicable law, I deem the medical grievances at issue here exhausted.10 See Hill, supra, 387 F. App’x at 400-01 (reversing grant of summary judgment in favor of defendants in regard to prisoner’s non-exhaustion in light of prisoner’s evidence indicating that defendants hindered his attempts to exhaust grievances by refusing to provide him with proper forms and reflecting their destruction of or failure to respond to grievances he submitted); Widener v. City of Bristol, 2014 WL 3058560, at *3-4 (W.D. Va. July 2, 2014) (denying defendants’ summary judgment motion based on non-exhaustion in light of evidence “that the plaintiff attempted to exhaust the administrative remedies available to him before filing this suit” and the defendants’ failure to meet their burden of proving that the plaintiff’s efforts did not constitute exhaustion); Allah v. Comm. of Virginia, 2011 WL 251214, at *4-5 (W.D. Va. Jan. 25, 2011) (denying VDOC’s motion for summary judgment based on non-exhaustion in light of VDOC’s failure to respond to plaintiff’s request form and other activities by which VDOC “frustrated” the plaintiff’s efforts to pursue his grievance); cf. Oliver, supra, 2010 WL 1417833, at *6 n.10 (“[t]o be sure, if prison officials impede a prisoner’s attempts to exhaust by . . . failing to respond to a proper grievance, a prisoner may be excused from exhaustion requirements” (citations omitted)).
10 I note that, in addition to the efforts to the named Plaintiffs, the record discloses that several other women (Ruth Hill, Michele Wagoner, and Rhonda Woods) who are members of the class I certified under 23(b)(2) also fully and properly exhausted medical grievances prior to the filing of this action. Considered in tandem with the exhausted grievances of the named Plaintiffs, these additional exhausted medical grievances easily support a finding of PLRA exhaustion on behalf of the entire class. See, e.g., Chandler v. Crosby, 379 F.3d 1278,1287 (11th Cir. 2004) (“We hold that a class of prisoner-plaintiffs certified under Rule 23(b)(2) satisfies the PLRA’s administrative exhaustion requirement through ‘vicarious exhaustion’ i.e., when ‘one or more class members ha[s] exhausted his administrative remedies with respect to each claim raised by the class.’” (citations omitted)); see also Gates v. Cook, 376 F.3d 323, 330 (5th Cir. 2004); Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Butler v. Suffolk Cnty., 289 F.R.D. 80, 97 (E.D. N.Y. 2013); Jones’El v. Berge, 172 F. Supp. 2d 1128, 1133 (W.D. Wis. 2001); Hattie v. Hallock, 8 F. Supp. 2d 685, 689 (N.D. Ohio 1998). The “vicarious exhaustion” principle applies here.
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3. Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (citing Booth v. Churner, 532 U.S. 731, 737 (2001)). As a matter of policy, the host of grievances reflecting allegations of deficient medical care at FCCW, filed by the named Plaintiffs and other class members, are sufficient to satisfy the fundamental objective underlying the PLRA exhaustion-of-remedies requirement of notifying the VDOC of the systemic problems that are subject of this lawsuit and providing it with an opportunity to address those problems. Plaintiffs have pursued a vast array of grievances addressing myriad problems with the medical care provided at FCCW. Cynthia Scott’s grievance, while specific to her own circumstances, advised the VDOC of the practice of FCCW medical providers unilaterally diverging from the course of treatment prescribed for a prisoner by outside specialists, and also addressed the problem of FCCW’s failure to maintain continuity in the administration of prescribed medications. Ms. Fearce’s grievance, regarding which Defendants concede full exhaustion, addressed the ineffectiveness of FCCW’s treatment of the chronic pain caused by her carpal tunnel syndrome and FCCW’s refusal to consider the corrective surgery for this condition that was prescribed by the specialist at U.Va. Ms. Fearce’s other grievances discussed above focused on (i) FCCW’s general unwillingness or inability to provide adequate treatment for severe chronic pain associated with her degenerative joint disease and arthritis; (ii) FCCW’s refusal to refer her to U.Va. for follow-up diagnostic testing and care with respect to her chronic neurological problems; (iii) FCCW’s failure
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to follow through with regard to the course of treatment identified by its own medical staff as necessary to address her TMJ disorder; and (iv) FCCW’s disregard for her chronic pain and related mobility limitations in transferring her from a centrally located building to a more distant building, arguably at the urging of correctional staff.
Ms. Richardson’s grievances brought to the VDOC’s attention the matters of (i) FCCW’s failure to diagnose and treat uncertain medical problems such as the painful growth underneath her ribcage; (ii) FCCW’s failure to provide reasonable accommodations to prisoners with special medical needs such as her need for bathroom access due to medication-influenced incontinence; (iii) FCCW’s failure to provide adequate diagnostic information to prisoners with chronic illnesses such as her Hepatitis C; and (iv) FCCW’s deficient treatment of prisoners suffering from severe chronic pain.
Rebecca Scott’s grievances focused on FCCW’s failure or refusal to identify and implement an effective course of treatment for her painful, infected toenail.
Medical grievances submitted and fully exhausted by other class members likewise advised the VDOC of recurring deficiencies in the provision of medical care at FCCW. Michele Wagoner exhausted a Level I grievance addressing discontinuity in FCCW’s provision to her of prescribed cholesterol medication, which was determined by VDOC to be “founded” in November 2011. Ms. Wagoner also fully exhausted a Level II grievance regarding the failure of FCCW medical staff to properly monitor her cholesterol level between July 2010 and November 2011. Ruth Hill exhausted a Level II appeal of a medical grievance in June 2012 in which she complained of scheduling issues in regard to a provider’s appointment to which she had been determined to be entitled to Sick Call, but which was cancelled and then not rescheduled. Ms. Hill’s grievance was also determined by VDOC to be “founded”. Finally, class member Rhonda Woods fully exhausted through completion
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of the Level II appeal process two distinct medical grievances, rendered in March and April 2012. One concerned ineffective medications for the severe, chronic pain and high ammonia levels in her bloodstream resulting from her cirrhosis of the liver, and the other addressed FCCW’s general failure to treat her Hepatitis C. Additionally, a third Level II appeal pursued by Ms. Woods regarding FCCW’s deficient treatment of her chronic pain and refusal to act on the prescribed course of pain medication recommended by her specialist at U.Va. was resolved by the VDOC on July 11, 2012, two weeks before this case was filed.
Collectively, at the very least, the substance of the named Plaintiffs’ and the class members’ exhausted grievances advised the VDOC of many, if not all, of the ways in which FCCW’s practices manifest its failure to provide constitutionally adequate medical care to prisoners on a systemic basis, and placed the VDOC in a position to require FCCW to improve its performance with respect to its provision of medical care if the VDOC had been so inclined. That is all that is required by the PLRA exhaustion provision. See, e.g., Mathis v. GEO Group, 2011 WL 2899135, *6-7 (E.D. N.C. July 18, 2011) (rejecting defendants’ contention that named plaintiffs’ exhaustion of grievances with respect to “one specific health care-related issue” per each grievance was inadequate to support action challenging prison’s systemic failure to provide adequate medical care in deliberate indifference to prisoners’ serious medical needs; the court determined that “Calland and Terrell have exhausted grievances which are sufficient in detail to alert the BOP defendants to a failure to provide them with medical care . . . and also provide fair notice of the alleged systemic problems at Rivers described in . . . plaintiffs’ third amended complaint”), reconsideration den., 2012 WL 43586, at *3 (E.D. N.C. Jan. 9, 2012); see also Flynn v. Doyle, 2007 WL 805788, at *11-13 (E.D. Wis. March 14, 2007) (prisoner plaintiffs’ exhaustion of numerous individual grievances illustrating problems with various aspects of the medical and mental health care provided at women’s prison satisfied
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PLRA exhaustion requirements in context of class action challenging the inadequacy of the care provided on a systemic basis); Amador v. Andrews, 655 F.3d 89, 103-04 (2d Cir. 2011) (individual grievances addressing prison’s failure to protect specific women inmates from sexual assault by male correctional officers sufficiently implicated issues regarding policies and procedures that their exhaustion was adequate to support class action seeking systemic relief); Riggs v. Valdez, 2010 WL 4117085, at *12 (D. Idaho Oct. 18, 2010) (rejecting proposition that each of the interrelated “policies and practices” that the prisoner plaintiffs identified in their Eighth Amendment action alleging the prison’s deliberate indifference to their safety and security constituted a separate “claim” as to which PLRA exhaustion was required).
C. The ultimate issue in this case is whether Defendants acted (or failed to act) in a manner reflecting deliberate indifference to the serious medical needs of Plaintiffs and other women incarcerated at FCCW. Defendants contend that they are entitled to judgment as a matter of law on this issue on the basis of the following three conclusory assertions: • Plaintiffs cannot show that the VDOC Defendants “‘participated directly’ in denial of treatment that resulted in an objectively serious medical condition to Plaintiffs, deliberately interfered with FCCW doctors’ treatment, or tacitly authorized or were indifferent to the FCCW physicians’ misconduct”; • Plaintiffs cannot show that the contracts between the VDOC and the contract providers facilitated or resulted in inadequate medical care at FCCW; and • Plaintiffs cannot show that the VDOC’s policies, practices, and procedures, of which VDOC and its employees have control, have facilitated or resulted in inadequate medical care at FCCW. Defendants are wrong on all three points. Plaintiffs have demonstrated, to the extent required, the existence of disputed issues of material fact concerning (i) the VDOC’s tacit authorization of and indifference to the sub-standard medical care provided at FCCW; (ii) the manner in which the
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contract entered into between the VDOC and Corizon facilitated the provision of sub-standard medical care at FCCW; and (iii) the manner in which the VDOC’s policies, practices and procedures have facilitated or resulted in the provision of substandard medical care at FCCW.
I have already discussed my finding that Plaintiffs have satisfied the objective component of demonstrating a “serious medical need.” Indeed, Defendants have never argued that Plaintiffs’ Eighth Amendment claim should be rejected based upon lack of evidence of “serious medical needs.” Rather, their argument for summary judgment is premised upon Plaintiffs’ purported inability to meet the subjective element of a cognizable Eighth Amendment claim.
The subjective component of an Eighth Amendment claim challenging the conditions of confinement is satisfied by a showing of deliberate indifference by prison officials. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). “[D]eliberate indifference entails something more than mere negligence . . . [b]ut is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835. It requires that a prison official actually know of and disregard an objectively serious condition, medical need, or risk of harm. Id. at 837; Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995). De’lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (“De’lonta I”); see also Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001) (“Deliberate indifference requires a showing that the defendants actually know of and disregarded a substantial risk of serious injury to the detainee or that they actually knew of and ignored a detainee’s serious need for medical care.” (citing White ex rel. White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) (“A claim of deliberate indifference . . . implies at a minimum that defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the notice.”)). Under these standards, applied in the context of this case, Plaintiffs have met their burden of showing that there are genuine issues of material fact in dispute regarding the question of deliberate indifference.
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1. Defendants do not support their assertions of what Plaintiffs “cannot show” with any evidence. Contrary to Defendants’ argument, it is arguable that the VDOC’s officials and employees have been aware, since well before this litigation was initiated, of Plaintiffs’ allegations and claims concerning sub-standard medical care on a systemic basis at FCCW. It is likewise arguable that the VDOC took no action, in light of its apparent knowledge and awareness, to address or correct the problem, and that the provision of constitutionally deficient medical care at FCCW persists unabated. Plaintiffs’ arguments and evidence in support thereof wholly undercuts Defendants’ bald insistence that the VDOC and its employees never tacitly approved of or were deliberately indifferent to the quality of care at the facility. On June 13, 2012, more than five weeks before this action was filed, Abigail Turner, Esq., one of Plaintiffs’ counsel, transmitted a letter on behalf of Bobinette Fearce to then-Warden Phyllis Baskerville at FCCW, with a copy to then-acting VDOC Medical Director Mark Amonette, addressing concerns regarding FCCW’s denial or restriction of bathroom access to Ms. Fearce, given her acknowledged physiological problem with incontinence. Ms. Turner complained on Ms. Fearce’s behalf regarding (i) the general lack of as-needed bathroom access from the “dry” cells at FCCW; (ii) FCCW’s failure to keep Ms. Fearce supplied with adult diapers, which she needed to deal with her incontinence problem, and her lack of as-needed laundry or bathing privileges; and (iii) FCCW’s denial (or rescission) of the Medical Profile previously held by Ms. Fearce, pursuant to which she had been assigned to a single-capacity cell for privacy reasons. The letter referred briefly to caselaw identifying the potential Eighth Amendment implications of the difficulties reported on Ms. Fearce’s behalf, and it requested a response from the VDOC within five days. When neither Dr. Amonette nor Warden Baskeville responded to the letter, Ms. Turner
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addressed, on June 26, 2012, follow-up correspondence to A. David Robinson, VDOC Chief of
Corrections Operations, recounting Ms. Fearce’s concerns and noting certain actions undertaken at
FCCW in regard to Ms. Fearce that appeared to be in retaliation for the transmission of her earlier
letter. Apart from a perfunctory acknowledgement by Mr. Robinson of his receipt of Ms. Turner’s
letter, there was no response to the letter and there is no evidence of any action on VDOC’s part to
look into Ms. Fearce’s complaints or to address them in any way.
Subsequently, on July 13, 2012, Plaintiffs’ counsel transmitted a letter to VDOC Director
Harold W. Clarke, as well as Mr. Robinson and Warden Baskerville, notifying the VDOC that the
Plaintiffs and other women residing at FCCW “have suffered and continue to suffer the adverse
physical and mental effects of FCCW’s failure to provide care or provision of deficient care in
deliberate indifference to their serious medical conditions.” The letter continued, in pertinent part,
as follows:
We address our concerns to you as the officials responsible for administration and oversight of the contract between the Department of Corrections and Armor Correctional Health Services, Inc. and with the prior provider, Corizon Health, Inc. (formerly PHS Correctional Healthcare, Inc.). You bear the responsibility to insure the provision of adequate, appropriate health care to the residents at FCCW. At FCCW, you have delegated the provision of medical care to Armor. You have an affirmative duty to insure that Armor’s performance of its contractual obligations does not involve practices and procedures that fail to provide FCCW’s residents with the care they need. We believe that the medical care Armor and its predecessors have provided exposes the women at Fluvanna to undue pain, suffering and an increased risk of further illness or premature death.
Dozens of women have repeatedly filed grievances concerning FCCW’s provision of deficient medical care and have appealed those grievances to the Warden and to the Level II grievance appeal system. The doctors and the DOC have often met those grievances with summary dismissals and a medical care system that reflects continuing disregard for legitimate concerns. As a result, the systemic deficiencies characterizing Armor’s and its predecessor’s contract performance at FCCW persist.
Otherwise, the letter provided its recipients with an itemized listing of specific areas of
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concern in regard to the quality of medical care provided at FCCW, such as the inadequate Sick Call process; FCCW’s consistent failure or refusal to provide those suffering from severe chronic pain with effective medication; FCCW’s failure to provide women suffering from bladder-control problems with bathroom access on an as-needed basis; and FCCW’s failure or refusal to carry out the courses of treatment prescribed for prisoners by outside specialists, among a host of others. The letter also advised the addressees of the potential legal implications of the sub-standard care described under the Eighth Amendment, and invited the VDOC to commence negotiations. Upon the VDOC’s complete failure to acknowledge its receipt of, or otherwise respond to, the Plaintiffs’ letter of July 13, 2012, this action was initiated on July 24, 2012.
The record discloses Mr. Robinson’s testimony that no actions have been undertaken by the VDOC regarding the medical care provided at FCCW as a result of the filing of this lawsuit. Frederick Schilling, the VDOC’s Health Services Director, has testified that the pendency of this lawsuit and the allegations set forth by the Plaintiffs regarding the sub-standard medical care provided by the VDOC’s contractors at FCCW, Armor and Corizon, had no impact at all on the VDOC’s evaluation of those entities as bidders on the VDOC contract that took effect on May 1, 2013, or on the VDOC’s selection of Corizon as the successful bidder. Meanwhile, Plaintiffs continue to experience the adverse effects of health problems they already had at the time this action was filed, as well as new health concerns in connection with which they remain subject to the seriously deficient medical care that is provided by FCCW on a systemic basis. The medical grievances that Plaintiffs have continued to file and exhaust during the pendency of this case, as memorialized by the VDOC’s own records, provide evidence to support Plaintiffs’ allegations of ongoing serious risks to Plaintiffs’ health and well-being, and the VDOC’s unyielding indifference to those risks.
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With the selection of Corizon to again serve as the VDOC’s contractual medical care provider at multiple VDOC facilities, including FCCW, effective as of May 1, 2013, the VDOC appointed monitors to oversee Corizon’s provision of medical care at the subject prisons, subject to the direct oversight and supervision of a registered nurse, Catherine Thomas. The VDOC delegated the responsibility to develop the monitoring tools intended to guide the contract monitors’ on-going assessment of Corizon’s performance to Ms. Thomas, rather than a physician. Ms. Thomas, in turn, developed the monitoring criteria not in consultation with any VDOC physician, but rather with Mr. Schilling, who is not a doctor and has no training as a medical care provider. The monitoring system Mr. Schilling and Ms. Thomas developed derives from VDOC Operations Procedures, and was designed to evaluate the nature and extent of Corizon’s compliance with VDOC policies, not to measure patient outcomes or monitor specific illnesses. The tools themselves monitor compliance in a number of areas based upon selection and review of a sample of patient charts, which are then scored. The VDOC determined that a compliance level of 80% in each monitored category is an acceptable score, because this is the level used by VDOC facilities in their own continuous quality improvement process. However, because scores regarding different aspects of contractual performance are combined, overall compliance can be over 80% on one of the consolidated measures even when a particular component of that measure falls well below 80% by VDOC’s own standards.
Where Corizon’s performance falls short of the mark on a particular metric, the responsibility is entrusted to the contractor to develop and implement a solution. The VDOC does not intervene in regard to matters of sub-standard performance on Corizon’s part. Moreover, the VDOC has never imposed, or even considered imposing, any penalty or sanction in response to the contractor’s deficient performance in regard to provision of medical care. In accordance with these principles,
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although the VDOC Contract Monitor has repeatedly identified significant shortcomings in the manner in which Corizon is providing medical care at FCCW, e.g., with respect to, inter alia, substantial delays in the provision of doctor appointments to prisoners identified by the Sick Call process as requiring a doctor’s attention; substantial delays in the provision of provider appointments to prisoners designated for chronic care; and major and recurring deficiencies associated with FCCW’s ordering, maintenance and administration of medications prescribed to treat prisoners, there is no indication that the VDOC ordered or undertook any affirmative steps to require corrective action.
William Nicholson, the VDOC’s Pharmacy Director, personally visited FCCW on January 15, 2014, in light of an “increase in the number of founded medication related grievances at FCCW.” Mr. Nicholson met with Warden Brown at FCCW on this occasion, and she has acknowledged her agreement with his statement that “[t]he visit and recent reports are disturbing with regard to the medication management operation at Fluvanna.” This accords with the findings and opinions of Plaintiffs’ medical expert, Dr. Greifinger, who determined on the basis of a detailed analysis of Plaintiffs’ medical records that each of them had directly experienced the consequences of a “failure to provide timely delivery or administration of prescribed medication” that “put these women at serious risk of harm.”
A further illustration of the VDOC’s arguable failure to respond to evidence of sub-standard medical care provided at FCCW is provided by the deposition testimony of its Medical Director, Dr. Amonette. He testified that, in his own post-mortem evaluation of the death of FCCW prisoner Jeanna Wright, which is specifically addressed and described in the Plaintiffs’ second amended complaint, he reached the conclusion that Ms. Wright’s cancer had not been properly diagnosed in a timely way. Apart from possibly mentioning this conclusion to VDOC Health Services Director
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Schilling, Dr. Amonette took no action to bring this probable mis-diagnosis to anyone’s attention. Even when confronted with independent evidence of obvious deficiencies in care, the VDOC
has proclaimed that, notwithstanding its constitutional obligation to ensure the provision of adequate and appropriate medical care to prisoners residing at FCCW, “VDOC officials do not interfere with or otherwise direct the medical care provided by Corizon staff at FCCW.”
Defendants state that “[w]hen, based on the evidence presented, a fair minded jury could not reasonably find for the plaintiff, summary judgment is appropriate.” However, the converse is also true: if a reasonable fact-finder could conclude, on the basis of the evidence presented in opposition to a motion, that judgment may be rendered in favor of the non-moving party, summary judgment must be denied. Here, I conclude that, based upon the evidence before me, a fact-finder could reasonably determine that the VDOC is deliberately indifferent to the serious medical needs of the Plaintiffs and the entire class of women residing at FCCW. As a result, Defendants’ request for judgment as a matter of law on this issue must be rejected.
A reasonable finder of fact could conclude that the evidence establishes that the VDOC Defendants were directly notified of, and thus possessed subjective knowledge regarding, the serious medical needs of women prisoners at FCCW and their concerns that the sub-standard quality of medical care provided by VDOC’s contractors was insufficient to meet those needs and placed them at a substantial risk of serious harm. The VDOC’s failure to require or undertake corrective action and its “hands-off” attitude towards its medical care contractors under these circumstances constitute ample grounds for a finding of deliberate indifference.
A core principle of Eighth Amendment jurisprudence in the area of medical care is that prison officials with knowledge of the need for care may not, by failing to provide care, delaying care, or providing grossly inadequate care, cause a prisoner to needlessly suffer the pain resulting from his or her illness.
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McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (reversing grant of summary judgment in defendants’ favor in light of existence of evidence establishing genuine issues of material fact as to whether prison physician and head nurse were deliberately indifferent to plaintiff’s need for further diagnostic testing to determine cause of severe, chronic pain of which he constantly complained); see also Kuhne, supra, 745 F.3d at 1096-97 (reversing grant of summary judgment in favor of defendants based on determination that evidence existed on the basis of which a reasonable jury could find that refusal to provide adequate medical attention and consultation with an outside specialist to address prisoner’s proliferative diabetic retinopathy constituted deliberate indifference to serious medical need); Coleman v. Sweetin, 745 F.3d 756, 765-66 (5th Cir. 2014) (evidence reflecting defendant prison nurse practitioner’s refusal to respond to the plaintiff’s persistent sick call requests or provide plaintiff with pain medication even when plaintiff was in so much pain that he could not lie down or use the toilet in a normal manner following a fall resulting in a later-diagnosed broken hip was sufficient to establish basis for a finding of deliberate indifference requiring reversal of lower court’s judgment of dismissal); Hayes, supra, 546 F.3d at 522-26 (reversing summary judgment entered in favor of prison physician who disclaimed awareness that plaintiff had a serious medical need requiring treatment in light of evidence establishing physician’s steadfast refusal to refer plaintiff to an outside specialist who could have diagnosed plaintiff’s serious testicular disorder despite plaintiff’s constant complaints of excruciating pain); cf. De’Lonta II, 708 F.3d at 526 (“‘[A] total deprivation of care is not a necessary condition for finding a constitutional violation: Grossly incompetent or inadequate care can [also] constitute deliberate indifference[.]’” (quoting Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (internal quotation omitted)).
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2. As I have previously observed in this and other opinions in this case, the contract entered into between the VDOC and Corizon, pursuant to which Corizon replaced Armor as medical care provider at 17 VDOC facilities, including FCCW, effective May 1, 2013, is based upon a “capitated financing” model. Under this approach, pricing of the contract is based on assumptions regarding an average cost of medical care per prisoner and each facility’s projected average daily population. This financing methodology allows the VDOC to predict, with a reasonably high degree of confidence, how much it will have to spend on medical care over the life of the contract. Under a contract premised upon the “capitated financing” approach, also known as a “full-risk” contract, the contractor bears the full risk that the medical care costs may exceed the presumptive cost-per-prisoner estimate that dictates the agreed-upon contract price. Because assumptions regarding adequate staffing, costs for medication, and other relevant variables are all factored into the medical-cost-per-prisoner amount that serves as the basis for the pricing of the contract, and the contractor agrees to receive a fixed sum of money, regardless of how much or how little care it ultimately must provide to prisoners in performing the contract, the contractor’s profit margin directly depends upon the amount of care it provides. Against this backdrop, and with full awareness – as a result of the pendency of this lawsuit – of the existence of allegations that the medical care at FCCW was already sub-standard on a systemic basis, the VDOC chose Corizon to serve as its contractor for the May 1, 2013, contract, based on a bid that was $17 million lower than the bid of Armor, the VDOC’s incumbent provider. Bruce Teal, Armor’s Chief Executive Officer, testified that, based on its incumbent status, Armor was well aware of the costs of providing care at FCCW facilities, and that “under no circumstances” could Armor have agreed to serve as the VDOC’s medical care provider under the new contract for
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the amount bid by Corizon. Given these facts (i.e., a fixed-cost contract structured in a manner that provides the contractor
incentive to minimize the costs of care in order to maximize its profit margin, the VDOC’s pre-existing awareness of allegations of deficient care at FCCW, and the VDOC’s acceptance of a bid by Corizon to secure the VDOC’s business that was $17 million lower than that of the thencurrent contractual medical provider), a reasonable fact-finder could conclude that a reduced level of medical care was the virtually inevitable result of the VDOC’s decision to select Corizon as its contractor. The fact-finder could likewise conclude that the VDOC’s decision to favor lower contract cost over the likely quality of the resulting care reflects deliberate indifference to the serious medical needs of the prisoners in VDOC’s custody and residing in facilities subject to the May 1, 2013 contract.
In the case of a private for-profit corporation hired to perform a public function, there is an increased risk that the corporation’s actions will diverge from the public interest. Unlike public officials, corporate officers and employees are hired to serve the interests of the corporation and, more specifically, its stockholders, whose principal interest is earning a financial return on their investment. Indeed, corporate officers owe a fiduciary duty to advance stockholders’ interests, but they owe no such fiduciary duty to the public at large. . . . Especially when a private corporation is hired to operate a prison, there is an obvious temptation to skimp on civil rights whenever it would help to maximize shareholders’ profits. Manis v. Corr. Corp. of Am., 859 F. Supp. 302, 305 (M.D. Tenn. 1994) (emphasis added); accord Hartman v. Corr. Medical Servs., Inc., 960 F. Supp. 1577, 1581 (M.D. Fla. 1996). It would be reasonable to conclude that the general inclination of a private for-profit medical care contractor was magnified, given the reduced amount of Corizon’s bid to win the contract. Although the VDOC arguably recognized the significant risk that this set of circumstances might have an adverse impact on the quality of the resulting medical care and appointed contract monitors as a supposed mitigation measure, the evidence supports a reasonable conclusion that it has failed to act on the monitors’
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concrete findings of deficient care at FCCW. A reasonable fact-finder could conclude that, because of the cost considerations upon which
the contractual relationship between the VDOC and Corizon is based, the VDOC displaced its constitutional obligation to provide adequate medical care. See, e.g., Fields v. Corizon Health, Inc., 490 F. App’x 174, 184 (11th Cir. 2012) (affirming judgment entered in accordance with jury verdict against defendants where, “if the jury did ask itself why [Corizon] delayed treatment for Mr. Field’s paralysis, it could have concluded that it delayed treatment to save costs.”); Ancata, 769 F.2d at 704 (“if necessary medical treatment has been delayed for non-medical [i.e., cost-saving] reasons, a case of deliberate indifference has been made out” (citation omitted)).
3. Defendants insist that FCCW’s correctional staff’s practice of limiting or depriving incontinent prisoners at FCCW of bathroom access on an as-needed basis does not reflect deliberate indifference to serious medical needs or constitute a denial of adequate medical care. In support of this contention, Defendants portray the bare, unsupported statements of opinion rendered by their proffered expert witness, Ronald J. Angelone, as “facts,” and further characterize these “facts” as undisputed. Regarding the lack of prisoner access to the bathroom at FCCW when the prisoners are locked in their cells, Mr. Angelone opines that, “[m]ost times the request to leave the cell is allowed immediately, but on some occasions an offender may have to wait a short period of time in her cell so that the next offender who had requested earlier to use the restroom facilities can be released from her cell.” This statement is contradicted by the facts alleged in the Plaintiffs’ pleadings and supported by their sworn declarations and deposition testimony; accordingly, it is a disputed factual issue. Likewise, Defendants’ bald assertion that the “Plaintiffs cannot show that VDOC Defendants
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and employees mandated to medical staff at FCCW that [prisoners’ medical profiles granting bathroom privileges] be revoked” cannot be reconciled with the testimony of former FCCW Medical Director David MacDonald, M.D., who expressly stated that he stopped writing medical profiles for bathroom access at the request of “security.”
Plaintiffs’ medical expert, Dr. Greifinger (who, unlike Mr. Angelone, is qualified to address this issue from a clinical perspective) has opined that the urinary incontinence experienced by women at FCCW such as Bobinette Fearce and Marguerite Richardson constitutes a serious medical need. He has further concluded that “[t]he Defendants failed to accommodate Ms. Fearce’s need for frequent toileting that was caused by her inability to get an appropriate level of medical care,” and that “Ms. Richardson’s toileting needs have been consistently abridged.” Both conclusions are encompassed within the scope of Dr. Greifinger’s overall opinion that “[t]he care provided to the Plaintiffs in this case was deficient. It systematically falls far below the standards of correctional care and correctional healthcare.”
Thus, there exists, at a minimum, a genuine issue of material fact regarding the extent to which the VDOC’s own practices and policies facilitated or caused the provision of sub-standard medical care at FCCW.
D. Defendants move for summary judgment on the ground that neither the manner in which the VDOC has responded to Plaintiffs’ medical grievances nor the substance of the grievance responses can serve as the basis for imposing Eighth Amendment liability. This contention is puzzling, given that my review of Plaintiffs’ pleadings and motions discloses no such claim. To be sure, “the Constitution creates no entitlement to grievance procedures or access to any such procedures voluntarily established by a state,” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1975), and district courts
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routinely “have applied Adams and held that a prison official’s failure to comply with the grievance procedure is not actionable under Section 1983,” Fisher v. Neale, et al., 2010 WL 3603495, at *7 (E.D. Va. Sept. 8, 2010) (collecting cases). However, I find no argument on Plaintiffs’ part that the VDOC’s responses (or failures to respond) to Plaintiffs’ medical grievances, in and of themselves, constitute deliberate indifference to a serious medical need. Rather, as plainly stated in the second amended complaint (and the previous complaints), the substance of the numerous medical grievances that the named Plaintiffs and other women residing at FCCW have submitted serve as evidence that the VDOC was placed on notice of the systemic problems regarding the manner in which medical care is and has been provided at FCCW, and it is these systemic problems that provide the basis of the Eighth Amendment claim in this action. “Though a prison official has no substantive constitutional duty to respond to grievances, he or she does have a duty to prevent and remedy constitutional violations within his [or her] supervision and control.” Young v. Wexford Health Sources, 2012 WL 621358, at *5 (N.D. Ill. Feb. 14, 2012) (citations omitted). Therefore, “[a] prison official may . . . be held liable under 42 U.S.C. § 1983 for failing to respond to violations of a prisoner’s constitutional rights that come to his or her attention via the grievance process.” Id. (emphasis added). As I have already discussed in this opinion, Plaintiffs are using the medical grievance record to show that it provided sufficient notice to alert prison officials at FCCW and the VDOC to “an excessive risk to inmate health or safety.” Farmer, supra, 511 U.S. at 837. “Once the official knows of that risk, the refusal or declination to exercise the authority of his or her office may reflect deliberate disregard.” Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996).
V. CONCLUSION For the stated reasons, I will deny Defendants’ motion for summary judgment, and I will grant
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 Case 3:12-cv-00036-NKM Document 188 Filed 11/20/14 Page 1 of 33 Pageid#: 3853

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

Plaintiffs, all prisoners residing at Fluvanna Correctional Center for Women (“FCCW”), a facility of the Commonwealth of Virginia Department of Corrections (the “VDOC”), filed this action pursuant to 42 U.S.C. § 1983 alleging that Defendants1 violated Plaintiffs’ constitutional rights under the Eighth Amendment to be free from cruel and unusual punishment. Plaintiffs assert that FCCW fails to provide adequate medical care and that Defendants are deliberately indifferent to this failure. Plaintiffs request a declaratory judgment and preliminary and permanent injunctions ordering FCCW to provide adequate medical care to Plaintiffs and all other similarly situated women residing at FCCW.
Plaintiffs filed a motion seeking certification of a class consisting of themselves and all other women who currently reside or will in the future reside at FCCW and who have sought, are currently seeking, or will seek adequate, appropriate medical care for serious medical needs, as contemplated by the Eighth Amendment to the Constitution of the United States.2 The VDOC Defendants
1 The remaining Defendants, or the “VDOC Defendants,” are Harold W. Clarke, the Director of the VDOC; David Robinson, VDOC’s Chief of Corrections Operations; Frederick Schilling, VDOC’s Director of Health Services; and Phyllis A. Baskerville, the Warden at FCCW. I will also refer to Defendants as “the VDOC.” 2 This case was filed in July 2012. I have denied several motions to dismiss, and I awarded attorneys’ fees
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responded in opposition to Plaintiffs’ motion, but do not contest the showings made by Plaintiffs with respect to each element of Rule 23(a), or controvert Plaintiffs’ arguments as to why this action is properly certified pursuant to Rule 23(b)(2), and to the extent the VDOC Defendants challenge the merits of Plaintiffs’ claims, a determination of the propriety of class certification (absent circumstances not present here) does not turn upon an assessment of the merits of the putative class’s claim.
At the conclusion of the hearing in this matter, I stated that I would grant Plaintiffs’ motion. As described more fully herein, Plaintiffs present fully developed legal arguments and a record in support of their factual assertions that meet the threshold standards for class certification established in Rule 23(a) of the Federal Rules of Civil Procedure, and I am satisfied that, in accordance with Plaintiffs’ requests for declaratory and injunctive relief, the matter is appropriate for certification under Rule 23(b)(2).
I.3 A. Operated by the VDOC, FCCW houses approximately 1,200 women, a majority of whom are 35 years of age or older and are serving median sentences of twenty years. FCCW includes a medical building in which medical, dental, and mental health services are provided. FCCW is the prison within the VDOC system purportedly able to provide the most complete medical care to
2(...continued) to Plaintiffs upon resolution of a discovery dispute in Plaintiffs’ favor. I recently heard the parties’ crossmotions for summary judgment, and I will issue my opinion regarding those motions in the near future. 3 The factual allegations recounted herein are generally supported by the record that has been developed so far; however, they are not conclusions for the purpose of summary judgment.
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women prisoners, and it is where women with serious medical problems are sent in the first instance, or to which they are transferred from other VDOC facilities for the purpose of receiving a supposedly “heightened” level of care.
Since FCCW opened in 1998, the VDOC has contracted with outside medical providers for health care at the facility. Since at least November 2011, a frequently changing series of private, for-profit corporations have contracted to provide almost all medical, dental, and mental health services to the women at FCCW, with limited exceptions for services provided directly by the VDOC. The new contractor generally re-hires the medical personnel employed by the prior contractor. Frederick Schilling, the VDOC’s Health Services Director, testified that the price bid is the primary factor in the selection of the winning contractor from among competing bidders. Regarding the procurement process that resulted in Armor’s replacement of Corizon in 2011, he stated, “The number one difference [between the winning and losing bidder] was price.”
Beginning in 2011, the VDOC sought bids for the FCCW contract based on “capitated financing,” in which the contractor sets up a pricing schedule that fluctuates monthly, based on the facility’s average daily population. “Capitated financing” allows the VDOC to predict, with some degree of certainty derived from population forecasts, how much it will spend on medical care over the life of the contract. Prior to the 2011 change, contracts were based upon a risk/reward-sharing model, under which the VDOC and the private contractor shared equally in the risk that medical expenses might exceed expectations (up to a certain pre-determined level, where 100% of the risk falls back upon the VDOC).
Under the capitated financing scheme, also known as a “full-risk contract,” the contractor bears the full risk that health care costs may exceed the per prisoner price dictated by the pricing
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schedule in the contract.4 The capitated financing model was used in the 2011 contract, the 2013 contract, and the new contract that is supposed to have gone into effect on October 1, 2014. The contractor using the capitated system receives a fixed amount of money per prisoner, and its profit increases as the cost of care it provides to the prisoners decreases, regardless of how much or how little care is provided to the prisoners.
The VDOC promulgates standard operating procedures for the provision of health care within its prisons, including those prisons, such as the FCCW, where health care services are rendered by private contractors. Private contractors – for example, Corizon Health, Inc. (“Corizon”) and Armor Correctional Health Services, Inc. (“Armor”) (collectively, the “contractors”), both of which were formerly defendants in this case – have their own procedures, but they must also follow the VDOC’s procedures. Additionally, a contractor’s doctors must use the VDOC formulary for prescribing medication. Although a series of private health care contractors has come and gone in rotating fashion during the sixteen years since FCCW opened, the policies, practices, and many of the personnel providing care have largely remained the same. According to individual health care providers who have worked at FCCW, a change of contractor only rarely causes a substantive change in the provision of care; rather, only certain administrative procedures and the nature or volume of paperwork actually change.
B. The warden at FCCW is the highest-ranking VDOC official at the facility. The warden has authority over all staff, including medical personnel. Even when there is a private medical contractor, the warden remains ultimately responsible for the operation of the facility, including
4 There are some narrow exceptions where the VDOC bears the full cost, e.g., for treatments related to the hepatitis C virus, HIV/AIDS, and hemophilia.
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health care treatment and security. The VDOC determines the medical accommodations prisoners may receive, and medical staff has no authority to override VDOC criteria.
Plaintiffs allege that directives from VDOC security staff are arbitrary, with a medical-condition accommodation being permitted one day and then deemed impermissible the next. For example, doctors were once permitted to write “medical profiles” prescribing bathroom access for women with incontinence, but those have now been prohibited by VDOC security staff. Dr. David MacDonald, the medical director at FCCW for approximately five years, testified as follows: “The warden in particular asked me to stop writing profiles for bathroom privileges and [stated] that they [VDOC correctional staff] would handle that necessity.” (Emphasis added.) Similarly, doctors formerly prescribed extra toilet paper for women with incontinence or excessive menstrual or rectal bleeding, but they are no longer permitted to do so. Plaintiffs claim that, as a result, prisoners are confronted with the choice between soiling themselves or being disciplined for “inappropriate bathroom usage.”
According to Plaintiffs, the VDOC’s policies and practices permit decisions by non-medical staff to trump the medical staff’s treatment protocols. For example, security concerns have been raised to justify limiting the time within which a prisoner can be sent out for an appointment to see an outside medical provider. Security staff decisions also limit prisoners’ access to health care even within the facility. For instance, one VDOC report reviewing medical operations at FCCW recounts with concern an incident in which a prisoner with a broken ankle suffered for several weeks without treatment, and missed an appointment at least once because, “[p]er the LT [lieutenant], the offenders can only come over for medical appointments on Friday.” Nurse Woodson, who ran “sick call” at FCCW for many years, states that she experienced difficulty seeing patients for scheduled appointments during lockdowns.
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Plaintiffs claim that the VDOC provides little supervision of the privately-provided care at FCCW, and that the VDOC provides little or no follow-up when it identifies deficiencies. Prior to May 2013, a VDOC regional nurse periodically visited FCCW, while more recently, the VDOC has used “contract monitors,” who visit the facilities regularly, review medical charts, and grade the contractor’s compliance using a series of metrics selected by the VDOC. The VDOC instituted the contract monitoring system when Corizon took over the health care contract from Armor in May 2013. Having selected Corizon as the lowest bidder on the contract, the VDOC determined that monitors were necessary to make sure Corizon provided care that met VDOC standards.
Catherine Thomas, the head Contract Monitor for the VDOC, is a registered nurse (“RN”) with over 40 years of experience. The VDOC assigned Ms. Thomas to develop monitoring tools based on VDOC policies and procedures. David Robinson, Chief of Corrections Operations at the VDOC, did not give Ms. Thomas any direction with regard to how she should develop those standards. According to Mr. Robinson, no VDOC policy specifically governs compliance or noncompliance with the contract for health services. Even so, Ms. Thomas relied on VDOC policies and procedures to develop the monitoring criteria, in consultation with Fred Schilling, the lead administrator for health services. Mr. Schilling is an administrator and does not have training as a medical care provider. The policies from which Ms. Thomas developed the monitoring tools deal with day-to-day operations of health services delivery, and not with specific illnesses or patient outcomes. The tools themselves monitor compliance in a number of areas based upon selection and review of a sample of patient charts, which are then scored. According to Ms. Thomas, the VDOC has determined that a compliance level of 80% is an acceptable score, because this is the compliance level targeted by VDOC facilities in the VDOC’s continuous quality improvement process. Scores regarding different aspects of care are combined and, thus, given the nature of averages, a
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consolidated measure can return an overall compliance score greater than 80%, even though particular components of the measurement fall well below 80% (by the VDOC’s own standards).
Ms. Thomas compiles monthly reports from the site monitors and sends those reports to various VDOC and private contractor officials. If the contractor falls short on any particular metric, it is then up to the contractor to create a quality improvement plan. Neither the Medical Director at FCCW nor any official with the private contractor, e.g., Corizon’s Regional Medical Director, regularly receives the reports. For example, Ms. Thomas keeps copies of reports when the contractor provides them, but does not share them with Mr. Schilling or Mr. Robinson at the VDOC. Ms. Thomas testified that, to her knowledge, no penalties are imposed on the contractor for non-compliance. For example, when monitoring reports identified serious flaws in pharmacy operations for over six months and lengthy backlogs in appointments with physicians, VDOC supervisors left it to the contract monitors to address these issues with the contractor, and the VDOC never contemplated any action to impose a default under the contract.
C. All VDOC inmates, including the women incarcerated at FCCW, are required to use the administrative grievance procedure developed by the VDOC in order to seek resolution of their medical issues and concerns. Plaintiffs allege that, although the VDOC receives many prisoner grievances regarding medical issues at both the institutional level and at VDOC headquarters, the VDOC has systematically failed adequately to respond to prisoner grievances regarding insufficient medical care, and the VDOC similarly refuses to use the process to identify larger systemic issues that merit attention and corrective action. In Plaintiffs’ view, the VDOC grievance system, at least as it is administered at FCCW, is used not to resolve grievances, but to prevent grievances from advancing by imposing an arbitrary and capricious bureaucratic burden on an inmate who avails
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herself of the grievance process. Plaintiffs’ expert, Dr. Robert Greifinger, a physician licensed by the State of New York, has
extensive experience in correctional healthcare, including the following: managing the provision of medical care at Riker’s Island, New York City’s main jail complex, from 1987 to 1989; serving for six years as the Chief Medical Officer for the New York State Department of Corrections, where he had overall responsibility for the provision of all inmate health services for a system involving 68,000 prisoners; serving as a court-appointed monitor overseeing medical care in the jails in Philadelphia, Pennsylvania; Fulton County, Georgia; DeKalb County, Georgia; Albuquerque, New Mexico; and for the State of Alabama’s women’s prison from 2006 to 2009. Dr. Greifinger is currently the court-appointed monitor regarding medical care at the Metropolitan Detention Center in Albuquerque as well as at the Orleans Parish Prison in New Orleans, Louisiana, and he monitors multiple jail and prison correctional healthcare systems on behalf of the Civil Rights Division of the United States Department of Justice. Additionally, he serves as a consultant to the Office of Civil Rights and Civil Liberties of the U.S. Department of Homeland Security.5
Dr. Greifinger’s report supports Plaintiffs’ allegations that FCCW’s responses to individual prisoner grievances at the institutional level do not address serious health care concerns when they are raised. For instance, Dr. Greifinger described the responses to Plaintiff Cynthia Scott’s grievances regarding “valid” medical complaints as “highly dispassionate and bureaucratic.” He continued:
There are frequent responses that just say she filled out the wrong kind of form or her
5 Dr. Greifinger has authored or co-authored dozens of articles addressing correctional medicine published in peer-reviewed journals; and is the editor of, as well as the author of one chapter in, the Second Edition of Clinical Practice in Correctional Medicine (2006). He has been found qualified to testify as an expert witness with respect to correctional medical care standards and practices by courts in more than 60 cases from 2000 to the present.
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complaint is too late to consider. Responses to grievances and complaints that indicate a need for urgency, such as medication lapses, are frequently not answered until ten days after the form was submitted. A few responses acknowledge the problems. One answer was redacted! . . . [M]ost are unresponsive to her pleas for information and timely access to care.
(Internal citations omitted.) Reviewing “the medical care for Plaintiffs Cynthia B. Scott, Bobinette
D. Fearce, Marguerite Richardson and Rebecca L. Scott (Plaintiffs),” Dr. Greifinger “found
persistent and systematic barriers to access to an appropriate level of care and to care ordered by
physicians for these patients . . . . Each of them has serious medical needs. The Defendants in all
cases were aware of these serious medical needs.”
Dr. Greifinger observed “a remarkable consistency to the complaints among the Plaintiffs and
between the complaints of the Plaintiffs and the unnamed proposed class members.” Outlining
“critical barriers to appropriate care for the Plaintiffs,” Dr. Greifinger discussed
the patterns and practices that have caused actual harm . . . and the risk of harm to each of the Plaintiffs caused by systematic failures in the sick call process; failure to provide timely delivery or administration of prescribed medication; delays in diagnosis and treatment including failures to refer or undue delay in referring to outside specialists; failure to carry out specialists’ prescribed courses of treatment; denial of an appropriate level of care; failure to accommodate disability; and punishment for disability.
(Paragraph numbering and internal citations omitted.)
Significantly, Dr. Greifinger concluded that “[e]ach of the Plaintiffs filed numerous
complaints, grievances, and appeals, putting the Defendants on notice of the deficiencies in care.”
(Internal citations omitted.) He continued:
Many of the responses to these notices were unnecessarily bureaucratic or callous, e.g., wrong form. This kind of response is alienating and it foments distrust and disrespect.
Some of the grievance “responses” are notably unresponsive. For example, Bobinette Fearce filed a grievance regarding failure to follow the UVA [University of Virginia Hospital Medical Center] recommendation for a referral to a cardiologist. The response was categorized as unfounded because FCCW physicians had not ordered it. I wonder why, then, the FCCW physician referred her to the ER. There is no clinical
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justification in the record to decline to follow through on the UVA ER physician’s recommendation. Another example is Margaurite [sic] Richardson’s request for a liver biopsy based on the UVA consultant’s recommendation. The response in this case was that liver biopsies are no longer the standard of practice. One wonders why FCCW physicians would send a patient to a specialist, only to reject that specialist’s recommendation. In fact, while there are other screening tests that have become available to use prior to biopsy, in Ms. Scott’s [sic] particular case, I expect that the gastroenterologist at the tertiary care center knew more about what was appropriate for this individual patient than the grievance officer.
(Paragraph numbering and internal citations omitted.)
Notwithstanding numerous examples of cursory, bureaucratic, or inadequate responses to
prisoner medical grievances, Warden Brown testified that she gives the grievance system at FCCW
“an A+.”
According to the VDOC Defendants’ own expert, Ron Angelone, a former VDOC Director
himself, a grievance response is adequate if “it is answered in a timely manner and neither avoids
or ignores the issues of the complaint or grievance.” Dr. Greifinger describes Mr. Angelone’s view
as “simplistic and bureaucratic,” writing that,
[t]hrough [Mr. Angelone’s] lens, the resolution of real deficiencies in a correctional facility’s provision of medical care is outside his visual field. . . . The standards for medical care in prison are timely access to an appropriate level of care and care that is ordered by a physician. To my knowledge, there is no standard of medical care in prison that is satisfied by trying hard.
(Emphasis added.)
The record shows the following regarding the review of medical grievances. Mr. Schilling
testified that he sends Level 2 medical grievances to the VDOC’s Dr. Amonette for review, but Dr.
Amonette stated that he does not review the Level 2 grievances; instead, the reviews are performed
by Howard Ray, a nurse in Mr. Schilling’s office. In turn, Mr. Ray rarely consults with Dr.
Amonette, and Dr. Amonette testified that no VDOC physician regularly reviews Level 2 grievances
concerning medical care. Mr. Schilling testified that complaints do not raise a red flag as long as
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they are determined to be unfounded. When Schilling was asked, “The fact that you’ve [hypothetically] gotten 50 Level 2 grievances with regard to the same problem within a two-month period, wouldn’t in and of itself raise any red flag?” he replied, “No.”
Dr. Greifinger reports that the VDOC’s failure to review the substance of prisoner complaints results in the dismissal of legitimate complaints and grievances without correcting problems. Dr. Greifinger observed that
Schilling testified that grievance data were not routinely analyzed . . . . He also testified to what I consider a perverse understanding of the grievance process, i.e., even if a grievance correctly identifies a problem, it will still be called “unfounded” if the health staff solely tried to prevent the problem or provided a wholly untimely response . . . . This perverse definition of “unfounded” and the reluctance to analyze grievance data is an example of the “head in a sand” approach to legitimate complaints and grievances. (Emphasis added; internal citations omitted.) Dr. Greifinger concludes that “[t]he failure to respond appropriately to complaints, grievances, appeals, and even lawyers’ letters indicates an obstinacy to provide timely access to an appropriate level of care.”
D. Plaintiffs allege that FCCW inmates have suffered and continue to suffer the consequences of a host of serious, systematic failures in medical care, and that these failures have placed the Plaintiffs and other inmates who access FCCW medical care at risk of serious harm, deterioration in their health, and even death. Plaintiffs further allege that the deficiencies in medical care have caused serious harms and fatalities in the past. As I have observed in previous opinions in this case, the allegations in the complaint were well-pleaded, and the allegations in the instant motion support the merits of Plaintiffs’ class allegations of the VDOC’s general, systemic failure to treat serious medical conditions at FCCW. I will repeat only a few of the examples.
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Plaintiffs allege that FCCW inmates must negotiate arbitrary roadblocks both in requesting and accessing medical care, and in receiving diagnoses and treatment for their serious medical conditions. Plaintiffs present, for example, FCCW’s sick call process, the principal means by which prisoners request and access medical care. According to Plaintiffs, sick call is often significantly backlogged and fails to diagnose and treat serious conditions in a timely way. Often the nurses who preform triage screening of sick call requests are not registered nurses, but are licensed practical nurses (with less medical training), and the VDOC’s own contract monitors have noted substantial delays in the processing of sick call requests. Under these circumstances, FCCW prisoners face a substantial risk that their serious medical issues will be overlooked or not treated in time to avoid harm.
The situation of Plaintiff Cynthia Scott is illustrative. Ms. Scott experienced swelling in her left leg and initiated a series of sick calls – sometimes two or three sick calls a week – to determine the cause, but nothing was done to help her. Even after Dr. Donald Remaly examined her and referred her to the University of Virginia Hospital Medical Center (“U.Va.,” or “UVA”) for an ultrasound, the Medical Director rescinded that order, delaying the ultrasound until the service could come to FCCW. However, when the service came to FCCW and the ultrasound procedure was begun, the ultrasound technician found a blood clot, quickly halted the procedure, and ordered that Ms. Scott be immediately taken to the U.Va. emergency room. By the time Ms. Scott arrived at U.Va., further ultrasound diagnosis determined that part of the blood clot had traveled to her lungs, a very serious development that placed her life at risk.
Similarly, Plaintiff Marguerite Richardson made numerous sick call visits, beginning in the spring of 2011, regarding painful sores and boils on the back of her leg, but she received no effective treatment until a nurse belatedly reviewed the results of previously conducted lab tests and informed
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her that she had Methicillin-resistant Staphylococcus aureus (MRSA), which is a highly contagious form of bacterial infection that may be fatal if left untreated.
Even after prisoners are seen by a provider, Plaintiffs allege that FCCW medical staff routinely fail to diagnose and treat serious medical problems. For example, Dr. MacDonald testified that VDOC guidelines did not indicate that treatment for Marguerite Richardson was warranted, despite the fact that she had Hepatitis C, elevated liver enzymes, and a painful, swollen torso. As Dr. Greifinger noted, “[t]here is no documentation in the medical record that the health staff at FCCW ever considered Ms. Richardson for treatment [for Hepatitis C] when she was within the window of opportunity for this treatment . . . She was denied treatment for a condition that is curable in many patients . . . ,” and as a result she now has signs of cirrhosis and decompensated liver failure. (Emphasis added.)
Other prisoners at FCCW have similarly been placed at risk by the failure to diagnose and treat their conditions. For example, prisoner B.S.6 experienced intense lower back pain in May 2012. She sought treatment at the FCCW infirmary. She was sent to U.Va., where she was treated for pneumonia and released. The pain continued for several more months and B.S. begged for help from doctors at FCCW. Finally, in November of 2012, she was sent again to U.Va., where she was diagnosed with osteomyelitis, a spine infection. The infection had continued for so long at that point that the tissue between her spinal discs had completely deteriorated.
Prisoner M.W. repeatedly complained of pain and numbness in her right foot. Her complaints were not adequately addressed, and her diabetes-related circulation problems worsened, ultimately resulting in the amputation of her right foot and the lower part of her leg. The stump became
6 Prisoners who are not named plaintiffs, but who have submitted declarations describing the medical failures they have experienced, are referred to here by their initials.
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infected – Plaintiffs allege that the infection “arguably” was the result of inadequate wound care at FCCW – and it was necessary for M.W. to undergo a second amputation above her knee.
Plaintiffs allege that FCCW has a policy and practice of failing to schedule or send prisoners to see outside specialists in a timely manner. As recently as March 2014, requests made under the utilization management process, which is used to approve offsite provider visits and tests, took up to three weeks or longer just to be approved. As of May 27, 2014, referrals to outside providers that were considered urgent still took a week or more to be approved. However, these delays are modest compared to some of the documented delays that named Plaintiffs have experienced. For example, doctors at U.Va., treating Cynthia Scott for sarcoidosis, were concerned about the results of Ms. Scott’s EKG and ordered a follow-up MRI. Ms. Scott did not undergo the MRI for another six weeks. Similarly, on August 22, 2013, Dr. Sylvia McQueen ordered a colonoscopy for Plaintiff Bobinette Fearce. As a Corizon vice president at the time, Dr. McQueen was not subject to the utilization management approval process and directly approved the colonoscopy order herself. Still, Ms. Fearce did not have the colonoscopy until February 22, 2014, six months after it was ordered.
Plaintiffs allege that other prisoners at FCCW have also experienced substantial delays in seeing outside providers for treatment and tests. For example, prisoner C.R. experienced several episodes of throwing up blood, and in late February 2014, physicians at U.Va. informed her that she had an ulcer caused by damage from the drugs she was taking (ibuprofen and Lovenox7), and that she should return in two months for a gastrointestinal scope. As of May 20, 2014, FCCW had not sent C.R. for this examination. Similarly, prisoner A.C. has suffered consistent, daily rectal
7 Lovenox is a trade name for enoxaparin sodium, an anticoagulant used, among other things, to prevent and treat deep vein thrombosis or pulmonary embolism. See http://en.wikipedia.org/wiki/Enoxaparin_sodium (last accessed October 16, 2014).
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bleeding, with blood flow similar to a heavy menstrual period, during the time she has been incarcerated at FCCW. Beginning in 2013, she has received repeated advice to her from doctors at FCCW that she needs to be referred for corrective surgery. As of April 23, 2014 (the date of her declaration), she had received no further treatment for the condition.
Plaintiffs allege that, even after prisoners have seen outside providers for specialized diagnosis and treatment, FCCW staff, following the VDOC’s policies and practices, ignore or refuse to follow the treatment orders of those outside providers. Dr. Paul Ohai, who worked for both Corizon and Armor (for the latter as a Regional Medical Director), testified as follows that, under either Corizon or VDOC policy, the physician at the prison is expected to review and change a specialist’s orders:
Q. So when the prisoner returns to the prison, the physician at the prison would review the specialist’s orders? A. That’s correct. Q. And that physician might change some of the orders? A. As per policy, he’s expected to. Either Corizon or DOC policy, he’s supposed to. That’s part of his job. As previously mentioned, a U.Va. specialist recommended Plaintiff Marguerite Richardson for a liver biopsy, and she filed a grievance when FCCW failed to send her for the biopsy pursuant to the specialist’s recommendation. In response to her grievance, FCCW staff told her the procedure had been denied because liver biopsies are “no longer the standard of practice.” However, as Dr. Greifinger observed, “[o]ne wonders why FCCW physicians would send a patient to a specialist, only to reject that specialist’s recommendation . . . in Ms. Richardson’s particular case, I expect the gastroenterologist at the tertiary care center knew more about what was appropriate for this
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individual patient” than did the individual responding to the grievance.8 The declarations of other prisoners suggest that Ms. Richardson’s case is not isolated, and
Plaintiffs allege that numerous other FCCW prisoners have seen the treatments prescribed by off-site specialists ignored or modified. In particular, D.S.’s HIV specialist recommended that her HIV medication be switched from Atripla to Stribild due to the adverse mental health effects of Atripla. Her medication was not changed for two months because FCCW “wanted to use up all the old Atripla pills” before changing medications. Similarly, B.E.G.’s surgeons placed an expander in her chest following her mastectomy for breast cancer, and the expander was supposed to remain for only six months. B.E.G. has never been sent for follow-up to have the expander removed and to receive reconstructive surgery, despite the fact that her mastectomy took place in 2012. Furthermore, after a heart attack in September of 2012, B.E.G. was seen by a cardiologist who recommended an outside appointment for a heart test using a halter monitor, but she has not received a halter monitor, either.
Plaintiffs allege that the VDOC’s policies and practices deny needed accommodations to prisoners at FCCW with disabilities and serious medical conditions. For example, cells at FCCW are not equipped with toilets, so prisoners must leave their cells to use the bathroom. At times when the cells are locked, such as during the daily counts or at night, prisoners cannot leave their cells to use the bathroom without obtaining permission from security. As previously mentioned, medical staff formerly issued profiles allowing prisoners with incontinence or other medical conditions to use the bathroom as needed, but as Dr. MacDonald testified, “[s]ecurity said it was an onerous aspect for them to carry and they would rather take care of it on their own without profiles. So I
8 It appears that liver biopsies very well may be the standard of practice for hepatitis C patients, such as Marguerite Richardson. “Consensus conference statements recommended liver biopsy in the management of almost all patients with hepatitis C and B.” http://en.wikipedia.org/wiki/Liver_biopsy (last accessed October 15, 2014).
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stopped writing profiles.” As a result, because prisoners like Marguerite Richardson and Bobinette Fearce, both of whom suffer from incontinence, are not allowed access to a bathroom, they sometimes are forced to wet or soil themselves. Similarly, FCCW waited four months to repair or replace the malfunctioning hearing aids upon which plaintiff Rebecca Scott depends. According to Plaintiffs, Rebecca Scott was written up for disciplinary violations because she could not hear announcements given over the intercom.
Plaintiffs allege that numerous other prisoners have been denied needed accommodations for their medical conditions as well. Prisoner L.S.M. has a previous hip injury that requires her to use a cane for balance and a walker outside. Upon L.S.M.’s arrival at FCCW, prison staff took both of these away from her and did not return them for approximately a week. FCCW also forbade L.S.M. from raising more than one medical issue at a time in her sick call requests, denying requests on the ground that she had raised more than one medical issue. D.E. wears a bracelet stating that she is a fall risk, but nonetheless was taken to an off-site oncologist appointment wearing shackles and cuffs without sufficient staff assistance, which caused her to fall and permanently injure her knee. These declarations support the allegations that prisoners across the board at FCCW suffer the consequences of the same series of medical failures that affected and continue to affect the named Plaintiffs.
Plaintiffs allege that, because of the VDOC’s policies and practices, FCCW consistently fails to provide medications that prisoners need to treat illnesses or manage pain. The VDOC’s own contract monitors have noted major deficiencies on multiple occasions in how medications are ordered, stored, and administered. Long delays are typical in filling prescriptions for medications for chronic conditions such as diabetes, seizures, and cardiac conditions. Moreover, non-formulary medications can take up to a year to be approved. FCCW also fails to provide adequate pain medication to prisoners with severe, chronic conditions such as degenerative joint disease, instead
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telling them to buy over-the-counter medications such as Tylenol through the commissary. These delays and denials can have catastrophic consequences. For example, Plaintiffs allege that I.F., an able-bodied person before her incarceration at FCCW, now uses a wheelchair because she does not receive sufficient anti-inflammatories or pain medications to prevent the swelling and pain in her burn-scarred legs. Similarly, FCCW staff gave T.G. the wrong medications for her Type I diabetes, including being given Metformin and glyburide, which are treatments for Type II diabetics. This causes her diabetes to be very poorly controlled; she is frequently faint, and her vision has deteriorated to the point that she can no longer read small print.
II. The deprivation of medical care to which the named Plaintiffs and the class members allege they have been subjected is impermissible under the Eight Amendment’s bar to cruel and unusual punishment. “Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates may actually produce physical torture or a lingering death” in violation of the Eighth Amendment. Brown v. Plata, 563 U.S. ___, ___, 131 S. Ct. 1910, 1928 (2011) (quotations and citations omitted). “Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care.” Id. Here, as in Brown, “[p]laintiffs rely on systemwide deficiencies in the provision of medical . . . care that, taken as a whole, subject sick . . . prisoners . . . to ‘substantial risk of serious harm’ and cause the delivery of care to fall below the evolving standards of decency that mark the progress of a maturing society.” Id. at 563 U.S. at ___ n. 3., 131 S. Ct. at 1925 n. 3 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). As a consequence of their own actions, prisoners may be deprived of rights that are
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fundamental to liberty. But the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” Atkins v. Virginia, 536 U.S. 304, 311 (2002) (quoting Trop v. Dulles, 356 U.S. 86,100 (1958) (plurality opinion)).
To incarcerate, society takes from prisoners the means to provide for their own needs. . . . A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in a civilized society. Brown, 563 U.S. at ___, 131 S. Ct. at 1928. Consistent with these fundamental principles, the named Plaintiffs here seek declaratory and injunctive relief, for themselves and on behalf of all women who reside or will reside at FCCW, to prevent a perpetuation of the substandard medical care rendered by the VDOC at the prison on a systemic basis. Plaintiffs’ allegations and evidence in support thereof, as summarized above, presents a case not only that the named Plaintiffs have already suffered harm, but that many other FCCW prisoners have as well, based on the Defendants’ provision of inadequate medical care, or even the complete failure to provide care under circumstances in which it was obviously necessary. Moreover, Plaintiffs allege a pattern and practice of deficient care that subjects the named Plaintiffs and all others who are or will be incarcerated at FCCW to an ongoing substantial risk of serious harm in contravention of established Eighth Amendment standards. As discussed more fully below, Plaintiffs meet each requirement for class certification.
III. A. “[F]ederal courts should give Rule 23 a liberal rather than a restrictive construction, adopting a standard of flexibility in application which will in the particular case best serve the ends of justice -19-

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for the affected parties and . . . promote judicial efficiency.” Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir. 2003) (quotations and citation omitted). Furthermore,“courts routinely certify class actions involving prisoners, including cases challenging prison health care, mental health care, and dental care.” Flynn v. Doyle, 2007 WL 805788, at *3 (E.D. Wis. Mar. 14, 2007) (citing cases, certifying a class of “current and future [inmates at Taycheedah Correctional Institution (TCI) in Fond du Lac, Wisconsin], and . . . current and future TCI prisoners who have a disability”); see also Dean v. Coughlin, 107 F.R.D. 331, 333 (S.D.N.Y. 1985) (citing cases, and certifying class of “all persons who will be inmates” to challenge inadequate dental care).
B. Rule 23(a) provides that [o]ne or more members of a class may sue . . . as representative parties on behalf of all members only if: (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 defense of the representative parties are typical of the claims or defense of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Plaintiffs’ proposed class satisfies each of these threshold requirements.
1. “Numerosity” With approximately 1,200 women prisoners housed at FCCW who are subject to its medical care system, the proposed class is sufficiently large, on its face, to satisfy the Rule 23(a)(1) “numerosity” criterion. Joinder of all FCCW prisoners would be impracticable. “Impracticable,” for the purposes of Rule 23, does not mean “impossible”; rather, Plaintiffs must show that the number of allegedly affected individuals is sufficiently large that “[i]t would be extremely difficult or inconvenient to join all the members of the class.” See generally 7A Charles A. Wright, Arthur R. Miller & Mary
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Kay Kane, Federal Practice and Procedure § 1762 at 176 (3d ed. 2005) (footnote omitted); see also 1 Alba Conte & Herbert Newberg, Newberg on Class Actions § 3:3 at 225 (4th ed. 2002) (“Where the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied.”). In general, if a proposed class size exceeds 25 plaintiffs, joinder is usually presumed impracticable. Talbott v. GC Servs. Ltd. P’ship, 191 F.R.D. 99, 102 (W.D. Va. 2000); see also Knight v. Lavine, 2013 WL 427880, at *2 (E.D. Va. Feb. 4, 2013) (“The Fourth Circuit has affirmed certification for classes as small as 18 people.”) (citing Cypress v. Newport News Gen. and Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967)).
“Furthermore, other factors weigh in favor of finding that numerosity is met here, including the fluidity of prison populations and [individual] prisoners’ lack of access to counsel.” Riker v. Gibbons, 2009 WL 910971, at *2 (D. Nev. Mar. 31, 2009); see also Clarke v. Lane, 267 F.R.D. 180, 195 (E.D. Pa. 2010) (numerosity requirement satisfied by class of residents of facility holding up to 300 prisoners at a time); Lambertz-Brinkman v. Reisch, 2008 WL 4774895, at *1 (D. S.D. Oct. 31, 2008) (“Because the class includes future inmates, I find that joinder of all members would be impracticable.”); Dean, 107 F.R.D. at 332-33 (“The fluid composition of a prison population is particularly well-suited for class status, because, although the identity of the individuals involved may change, the nature of the wrong and the basic parameters of the group affected remain constant.”).
2. “Commonality” Rule 23(a)(2) requires Plaintiffs, as movants, to demonstrate that “there are questions of law or fact common to the class” that they seek to represent. While “[t]he requirement that questions of law or fact must be common to the class is to be liberally construed,” see McGlothin v.
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Connors, 142 F.R.D. 626, 632 (W.D. Va. 1992), a rigorous assessment of whether the Plaintiffs satisfy the “commonality” element of Rule 23(a) is mandated by the decision of the Supreme Court of the United States in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, ___, 131 S. Ct. 2541 (2011). Under Wal-Mart, “[c]ommonality requires Plaintiffs to demonstrate that the class members ‘have suffered the same injury’ . . . not . . . merely that they have all suffered a violation of the same provision of law.” 564 U.S. at ___, 131 S. Ct. at 2551 (citing Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982)). Thus, Plaintiffs’ claims “must 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.” Wal-Mart, 564 U.S. at ___, 131 S. Ct. at 2551. “‘What matters to class certification . . . [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.’” Id. (citing Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009) (emphasis in original)); see also Gray v. Hearst Commc’ns, Inc., 444 Fed. App’x 698, 700 (4th Cir. 2011); cf. Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir. 2013).
Notwithstanding the heightened scrutiny prescribed by Wal-Mart to be applied to the “commonality” requirement, it remains clear that “‘[e]ven a single [common] question” of law or fact will suffice to satisfy the requirements of Rule 23(a)(2). Wal-Mart, 564 U.S. at ___, 131 S. Ct. at 2556 (citation omitted). In addition, Wal-Mart principally involved claims for damages as to which certification was sought under Rule 23(b)(3), while the commonality element is more easily established in proposed class actions seeking injunctive or declaratory relief, such as the instant case. Indeed, “suits for injunctive relief by their very nature present common questions of law and fact.” McGlothlin, 142 F.R.D. at 633; see generally 1 Conte & Newberg, supra, § 3:10 at 277-78
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(“When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.”). Plaintiffs’ allegations meet the requirements of the post-Wal-Mart analytical framework for determining “commonality.”
The essential questions in this case – questions of fact and questions of law – do not vary among class members.
Common questions of fact include the following: (a) whether the VDOC’s contract system permits improper cost considerations to interfere with treatment of serious medical conditions; (b) whether the VDOC uses specious security justifications to trump treatment or accommodation of serious medical conditions and disabilities; (c) whether the VDOC fails to provide appropriate oversight, training, and supervision of medical care at FCCW; and (d) whether, as a result, the VDOC systematically provides inadequate medical care to the women residing at FCCW.
Common questions of law include the following: (a) whether the systemic and pervasive deficiencies in care at FCCW have placed its residents at unreasonable risk of suffering new or worsening physical injury, illness, mental anguish, emotional distress, and the prospect of premature death; and (b) whether the VDOC’s policies, procedures, and practices reflect deliberate indifference to the serious medical needs of residents of FCCW such that it has violated their right to be free from cruel and unusual punishment as proscribed by the Eighth Amendment.
Whether VDOC systematically provides inadequate medical care to the women residing at FCCW is a question of fact common to all class members. Plaintiffs have provided declarations from 17 women in addition to the named Plaintiffs demonstrating that their shared experiences with medical care at FCCW have been consistently damaging and traumatic. For the named Plaintiffs to proceed as individual litigants would not make sense. The key factual issues at the heart of
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Plaintiffs’ claims of constitutionally deficient medical care do not turn on an individual plaintiff’s particular personal health concerns, but rather on FCCW’s and the VDOC’s alleged systemic failure to provide a level of medical care to all of its residents that complies with constitutional norms. While the claims of the class members must arise from similar practices and be based on the same legal theory, the commonality requirement does not require that all class members share identical factual histories. See Holsey v. Armor & Co., 743 F.2d 199, 217 (4th Cir. 1984) (“Despite the presence of individual factual questions, the commonality criterion of Rule 23(a) is satisfied by the common questions of law presented.”).9
Numerous courts presented with similar factual circumstances have concluded that the prisoners’ claims easily satisfy the Rule 23(a)(2) commonality requirement. See, e.g., Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014). In Parsons, the Arizona Department of Corrections sought interlocutory appellate review of a federal district court’s decision to certify a class in an action brought by state prisoners alleging deficient medical, dental and mental health care of a systemic nature in the state’s correctional facilities.10 On appeal, the State of Arizona’s principal argument was that the district court erred in finding that the prisoners’ claims satisfied the “commonality” requirement of Rule 23(a)(2) under the heightened scrutiny mandated by the Supreme Court in WalMart. The United States Court of Appeals for the Ninth Circuit rejected the defendants’ argument
9 See generally Knight v. Lavine, supra, 2013 WL 427880, at *2 (where the primary question presented in ERISA breach-of-fiduciary-duty action was common to all 401(k) plan participant class members, individual issues concerning quantification of their respective losses did not preclude class certification); Martinez-Hernandez v. Butterball, LLC, 2011 WL 4549606, at *4 (E.D. N.C. Sept. 29, 2011) (individual distinctions between putative class members regarding impact upon each of defendants’ unlawful wage/hour practices did not impede a “commonality” finding in light of court’s determination that “this case involves a uniform policy or practice of compensating employees based on their scheduled shifts.”). 10 Coincidentally, medical, mental, and dental health care services are provided to the State of Arizona by Corizon, the VDOC’s current contractor. See Parsons, 754 F.3d at 662.
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that the presence of individualized medical injuries defeats class certification, noting that the
defendants’ position “amounts to a sweeping assertion that, after Wal-Mart, Eighth Amendment
claims can never be brought in the form of a class action.” Id. at 675-76. The Court of Appeals
explained that “[t]he defendants’ view rests . . . on a fundamental misunderstanding of Wal-Mart,
Eighth Amendment doctrine, and the plaintiffs’ constitutional claims.” Id. at 676.
Invoking the Supreme Court’s reasoning and holding in Brown v. Plata, supra, and focusing
upon the specific nature and substance of the plaintiffs’ claims, the Ninth Circuit concluded that
[h]ere, a proper understanding of the nature of the plaintiffs’ claims clarifies the issue of commonality. What all members of the putative class . . . have in common is their alleged exposure, as a result of specified statewide ADC policies and practices that govern the overall conditions of health care services and confinement, to a substantial risk of serious future harm to which the defendants are allegedly deliberately indifferent. As the district court recognized, although a presently existing risk may ultimately result in different future harm for different inmates – ranging from no harm at all to death – every inmate suffers exactly the same constitutional injury when he is exposed to a single statewide ADC policy or practice that creates a substantial risk of serious harm. . . .
The putative class . . . members thus all set forth numerous common contentions whose truth or falsity can be determined in one stroke: whether the specified statewide policies and practices to which they are all subjected by ADC expose them to a substantial risk of harm. . . .
The district court thus did not abuse its discretion in deciding to structure the litigation in the form of a class of “all prisoners who are now, or will in the future be, subjected to the medical, mental health, and dental care policies and practices of the ADC.” After all, every inmate in ADC custody is necessarily subject to the same medical, mental health, and dental care policies and practices of the ADC. And any one of them could easily fall ill, be injured, need to fill a prescription, require emergency or specialist care, crack a tooth, or require mental health treatment. It would indeed be surprising if any given inmate did not experience such a health care need while serving his sentence. Thus, every single ADC inmate faces a substantial risk of serious harm if ADC policies and practices provide constitutionally deficient care for treatment of medical, dental, and mental health needs. As Justice Kennedy explained in Plata, inadequate health care in a prison system endangers every inmate[.]
Parsons, 754 F.3d 678-79 (citations omitted).
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The reasoning articulated by the Ninth Circuit and the result reached with respect to the “commonality” criterion in Parsons are directly applicable here. Plaintiffs allege that the policies and practices at FCCW – e.g., the defective sick call process; FCCW’s refusal to refer or undue delay in referring prisoners for specialized care; the failure to maintain continuity in the provision of prescribed, potentially life-sustaining medications; etc. – reflect substandard medical care on the part of the Defendants. Whether these policies and practices place the Plaintiffs and other current and future FCCW prisoners at a substantial risk of serious harm to which the Defendants are deliberately indifferent implicates questions of fact and law common to the entire putative class.
Other district courts have recognized, in the aftermath of Wal-Mart, that its analytical regime concerning “commonality” does not serve as a barrier to the certification of class actions in cases involving prisoners’ claims alleging a pattern and practice of conduct resulting in unconstitutional conditions of confinement. See, e.g., Jones v. Gusman, 2013 WL 2458817, at *40-42 (E.D. La. June 6, 2013) (in action brought by residents of Orleans Parish Prison challenging unlawful conditions with respect to safety and security, medical and mental health care, environmental conditions, fire safety and lack of Spanish language translation services, all attributed to Parish Sheriff’s systemic policies, court found “commonality” and “typicality” criteria satisfied, Wal-Mart notwithstanding); Hughes v. Judd, 2013 WL 1821077, at *19-25 (M.D. Fla. Mar. 27, 2013) (in action brought by parents and guardians of juvenile detainees alleging Polk County Sheriff’s deliberate indifference to guard-detainee and detainee-detainee violence and to the harm caused to detainees resulting from Sheriff’s unlawful policy governing the use of pepper spray in the County Jail, magistrate judge found that all elements of Rule 23(a), including “commonality”, were satisfied in light of Wal-Mart analysis), report and recommendation adopted as modified on other grounds, 2013 WL 1810806 (M.D. Fla. April 30, 2013); Butler v. Suffolk Cnty, 289 F.R.D. 80, 96-101 (E.D. N.Y. 2013)
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(prisoners residing in County correctional facilities brought class action seeking declaratory and
injunctive relief challenging systemic adverse environmental conditions resulting from County’s
alleged policies and practices reflecting deliberate indifference to their health; the district court, over
defendants’ challenge based on Wal-Mart, certified the class, holding that “[w]hether the County
was aware of and deliberately indifferent to the conditions at the SCCF is a common question
subject to class-wide resolution” (citation omitted)).11
3. “Typicality”
Rule 23(a)(3) mandates that “the claims . . . of the representative parties [must be] typical of
11 Accord Chief Goes Out v. Missoula Cnty, 2013 WL 139938, at *4-*7 (D. Mont. Jan. 10, 2013) (denial of fresh air and outdoor exercise); Indiana Protection and Advocacy Servs. Comm’n v. Comm’r, Indiana Dep’t of Corrections, 2012 WL 6738517, at *18 (S.D. Ind. Dec. 31, 2012) (denial of adequate mental health care and excessive use of solitary confinement; “The mentally ill prisoners here, have demonstrated through a wealth of evidence, that the class is united by the common question of whether the lack of treatment and isolated living conditions in IDOC facilities violate the Eighth Amendment.”); Henderson v. Thomas, 289 F.R.D. 506, 511-12 (M.D. Ala. 2012) (policy pursuant to which HIV-positive prisoners were segregated from remainder of prison population in violation of Americans With Disabilities Act and Rehabilitation Act); Olson v. Brown, 284 F.R.D. 398, 410 (N.D. Ind. 2012) (“[I]n this case, Mr. Olson has shown that the [Tippecanoe County Jail’s] specific practices relative to the handling (or non-handling) of grievances, opening of legal mail, and restricting access to the law library, have caused the inmates to suffer the same potential injury, which ties all of their jail standards claims together.” (Citations omitted.)); Rosas v. Baca, 2012 WL 2061694, at *2-5 (C.D. Cal. June 7, 2012) (unlawful policy of failing to prevent deputy-on-inmate and inmate-on-inmate violence in Los Angeles County jail system).
By the same token, Parsons confirms the continuing vitality of pre-Wal-Mart decisions in which prisoners’ claims of deficient medical care of a systemic nature were certified to proceed as class actions. See, e.g., Clarke, 267 F.R.D. at 196 (“failure to provide adequate healthcare” is the overarching common factual issue, notwithstanding differences in particular allegations of individual named plaintiffs); Riker, 2009 WL 910971, at *3 (“In this case, there are common issues of both fact and law. The common issue of fact concerns the policies and inadequacies Plaintiffs allege inhere in [the prison’s] health care system. The common issue of law concerns whether these policies and inadequacies constitute a[n] Eighth Amendment violation.”); Lambertz-Brinkman, 2008 WL 4774895, at *2 (“All members of the class seek a declaration that an illegal policy and practice exists and an injunction should be issued prohibiting such practice. This is sufficient to establish the requisite commonality.”); Flynn, 2007 WL 805788 at *4 (“The commonality and typicality requirements are also more easily met when the class members only seek injunctive relief, rather than monetary damages.”); Bradley v. Harrelson, 151 F.R.D. 422, 426 (M.D. Ala. 1993) (“Though there certainly may be some factual differences between the individual class members and the nature or severity of their illness, such individual differences do not defeat certification because there is no requirement that every class member be affected by the institutional practice or condition in the same way.”); Dean, 107 F.R.D. at 333 (“[T]he claims of each class member need not be identical to raise common factual and legal questions regarding the adequacy of an entire [prison health-care] system.”).
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the claims . . . of the class.” As the courts have frequently observed, this “typicality” criterion has close conceptual connections to both the Rule 23(a)(2) “commonality” requirement, discussed above, and the Rule 23(a)(4) “adequacy of representation” inquiry, addressed infra. The Supreme Court noted as follows in Wal-Mart:
We have previously stated in this context that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named 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. Those requirements therefore also tend to merge with the adequacy-of-representation requirement[.] 564 U.S. at ___ n. 5, 131 S. Ct. at 2551 n. 5 (citing Falcon, 457 U.S. at 157-58 & n. 13). Where “[t]he representative party’s interest in prosecuting his own case . . . simultaneously tend[s] to advance the interests of the absent class members,” the typicality standard is satisfied. Soutter v. Equifax Info. Servs., LLC, 498 Fed App’x 260, 264 (4th Cir. 2012); Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006); see also Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001) (the “named plaintiffs’ injuries [need not] be identical with those of the other class members, only that the unnamed class members have injuries similar to those of the named plaintiffs, and that the injuries result from the same, injurious course of conduct”); Rubidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993) (“When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.”). The essential question here is the extent to which the named Plaintiffs, by demonstrating the facts necessary to establish a prima facie case on their claims with respect to the systemic deficiencies characterizing the medical care system at FCCW and Defendants’ deliberate indifference to Plaintiffs’ serious medical needs, “would also prove the claims of the absent class
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members.” Deiter, 436 F.3d at 467. Here, Plaintiffs have alleged a broad variety of medical problems – diseases, physical afflictions, deteriorating conditions, and chronic pain – that are generally representative of the adverse health issues experienced by the entire prisoner population at FCCW. If Plaintiffs succeed in demonstrating by a preponderance of admissible evidence that the methods and procedures employed by FCCW in responding to their medical problems and concerns fail to pass constitutional muster and are attributable to deliberate indifference on the part of the Defendants, the resulting declaratory and injunctive relief would doubtless benefit the named Plaintiffs and all other FCCW prisoners alike.
Accordingly, the typicality requirement of Rule 23(a)(3) is met here, as numerous other courts have recognized in certifying substantially similar prisoners’ medical care class actions. See, e.g., Parsons, 754 F.3d at 686 (“[i]t does not matter than the named plaintiffs may have in the past suffered varying injuries or that they may currently have different healthcare needs; Rule 23(a)(3) requires only that their claims be ‘typical’ of the class, not that they be identically positioned to each other or to every other class member” (citation omitted)); Smentek v. Sheriff of Cook County, 2010 WL 4791509, at *7 (N.D. Ill. Nov. 18, 2010) (injunctive class certified regarding inadequate provision of dental care); Clarke, 267 F.R.D. at 197 (named plaintiff’s inadequate health care claim typical of the claims of the class he sought to represent); Riker, 2009 WL 910971, at *3-4 (prisoners’ claims of inadequate health care typical of class claims); Lambertz-Brinkman, 2008 WL 4774895, at *2 (female prisoners’ claims of inadequate health care typical of class claims); Robert E. v. Lane, 530 F. Supp. 930, 942 (N.D. Ill. 1981) (prison health care claims typical where plaintiffs sought to certify class based on allegations of “systemic behavior and harm”).
4. Fairness and Adequacy of Representation Rule 23(a)(4) requires a determination that the class representatives will fairly and adequately
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represent the interests of the entire class. Satisfaction of this element turns on two inquiries -whether the named plaintiffs have interests conflicting with those of absent class members; and whether class counsel are competent to conduct the class action and fairly represent the interests of the class. McGlothlin, 142 F.R.D. at 633. Here, Plaintiffs do not have any interests in conflict with the interests of the members of the class they seek to represent. Plaintiffs do not seek relief for themselves different in quality or character from the relief sought for the class as a whole. Rather, Plaintiffs seek a declaratory judgment and an injunctive order requiring the Defendants to provide the constitutionally-required level of care sufficient to meet the serious medical needs of all FCCW prisoners, now and in the future. Moreover, each of the named plaintiffs understands and fully accepts her responsibility as a class representative to vigorously prosecute this case in furtherance of her own interests and the interests of the class as a whole.
Plaintiffs are represented by experienced and qualified counsel who are competent to conduct this action and fairly represent the interests of plaintiffs and the class as a whole. The Legal Aid Justice Center and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs are well-known public interest legal services organizations with substantial experience with respect to and involvement in civil rights litigation, including class actions, in Virginia and, as regards the Washington Lawyers’ Committee, other jurisdictions. Those two organizations are joined as co-counsel by the Washington, D.C. law firm of Wiley Rein LLP, which is representing the Plaintiffs in a pro bono capacity. Wiley Rein is a firm of more than 275 attorneys that handles complex civil litigation matters, and its lead counsel in this case has significant experience in prisoners’ civil rights cases and class actions.12 Accordingly, the requirements of Rule 23(a)(4) are
12 See, e.g., docket nos. 109 & 110 (memorandum opinion and order granting Plaintiffs’ petition for attorneys’ fees).
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satisfied here. C.
Plaintiffs seek certification of this case to proceed as a class action pursuant to the provisions of Rule 23(b)(2), which provides that certification is proper where “[t]he 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.”
That standard is met here. Plaintiffs’ amended pleadings allege that the Defendants have provided deficient medical care, or failed to provide medical care under circumstances in which it is plainly warranted and needed, on a systemic basis that jeopardizes the continuing health and well-being of Plaintiffs and all other prisoners residing or who will reside at FCCW. If Plaintiffs ultimately prevail on the merits of their claims, the resulting declaratory and injunctive relief will likewise apply to and benefit all members of the proposed class. As the leading commentators on class action practice and procedure have recognized, this is precisely the type of case for which class certification pursuant to Rule 23(b)(2) was intended: “Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits. Most class actions in the constitutional and civil rights areas seek primarily declaratory and injunctive relief on behalf of the class and therefore readily satisfy the Rule 23(b)(2) class action criteria.” 8 Conte & Newberg, supra, § 25.20 at 550 (citations omitted). See generally Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 330 (4th Cir. 2006) (“Rule 23(b)(2) was created to facilitate civil rights class actions.”).
Consistent with this principle, federal courts regularly certify Rule 23(b)(2) classes in cases involving constitutional claims of prisoners alleging inadequate medical care and seeking injunctive relief. See, e.g., Parsons, 754 F.3d at 688-89 (“[B]y allegedly establishing systemic policies and practices that place every inmate in ADC custody in peril, and by allegedly doing so with deliberate
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indifference to the resulting risk of serious harm to them, the defendants have acted on grounds that
apply generally to the proposed class . . . rendering certification under Rule 23(b)(2) appropriate.”);
accord Clarke, 267 F.R.D. at 198; Riker, 2009 WL 910971, at *5; Lambertz-Brinkman, 2008 WL
4774895, at *4; Hilton v. Wright, 235 F.R.D 40, 53 (N.D.N.Y. 2006); Bradley, 151 F.R.D. at 427;
see generally 7AA Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1776.1 at 111-12 (3d ed. 2005) (citing cases).13
IV. As explained herein, this is an appropriate case for certification as a class action. The
proposed class of plaintiffs consists of approximately 1,200 female prisoners whose health concerns
are allegedly subject to a flawed prison healthcare system. The case concerns allegations of a
common course of conduct by Defendants reflecting deliberate indifference to the prisoners’ serious
medical needs. As a result, the principal factual and legal questions are common to the entire class,
and the injuries that the named Plaintiffs claim to have suffered are typical of those suffered by the
other women in the class.
13 As I have already observed, “courts routinely certify class actions involving prisoners, including cases challenging prison health care, mental health care, and dental care.” Flynn v. Doyle, 2007 WL 805788, at *3 (E.D. Wis. Mar. 14, 2007) (citing cases, certifying a class of “current and future [inmates at Taycheedah Correctional Institution (TCI) in Fond du Lac, Wisconsin], and . . . current and future TCI prisoners who have a disability”); see also Dean v. Coughlin, 107 F.R.D. 331, 333 (S.D.N.Y. 1985) (citing cases, and certifying class of “all persons who will be inmates” to challenge inadequate dental care); Penland v. Warren Co. Jail, 797 F.2d 332, 333-35 (6th Cir. 1986) (certifying (b)(2) class of “present and future prisoners” to challenge conditions of confinement, including health care); Bradley v. Harrelson, 151 F.R.D. 422, 425-27 (M.D. Ala. 1993) (certifying (b)(2) class of seriously mentally ill prisoners to challenge adequacy of mental health services); Robert E. v. Lane, 530 F. Supp. 930, 941-44 (N.D. Ill. 1981) (certifying (b)(2) class of “all persons who are or will be incarcerated at Stateville and who need or will need mental health services”); Jones ’El v. Berge, 2001 WL 34379611, at *12-13 W.D. Wis.2001) (certifying 23(b)(2) class of prisoners subject to “systemic” unconstitutional conditions of confinement, including inadequate medical, mental health, and dental care); Hassine v. Jeffes, 846 F.2d 169, 175-80 (3d Cir. 1988) (certifying 23(b)(2) class of prisoners challenging conditions of confinement).
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An appropriate order accompanies this memorandum opinion.

Entered this 20th

day of November, 2014.

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, et al.,

)

)

Plaintiffs, )

)

v.

)

)

HAROLD W. CLARKE, et al., )

)

Defendants. )

)

Case No. 3:12-cv-00036-NKM Sr. Judge Norman K. Moon

JOINT STATUS REPORT REGARDING SETTLEMENT

In response to this Court’s informal request, Plaintiffs Cynthia B. Scott, et al. and

Defendants Harold W. Clarke, et al., by their respective undersigned attorneys, hereby jointly

advise the Court as follows:.

1. Pursuant to a settlement agreement in principle reached between the parties, they

entered into a Memorandum of Understanding (“MOU”) on November 25, 2014, setting forth a

framework for progression towards a final Settlement Agreement. In accordance with their

intentions, the parties filed a Joint Notice of Settlement (ECF Dkt. No. 204), pursuant to which

this case was removed from the Court’s trial calendar.

2. Per the provisions of the MOU, each side selected an expert/consultant with

respect to correctional health care to assist the parties and work in collaboration with one another

on a comprehensive evaluation of the Virginia Department of Corrections Operating Procedures

and Treatment Guidelines governing the provision of medical care to prisoners at FCCW in order

that such Procedures and Guidelines reflect standards that, as implemented, will satisfy the

VDOC's obligation to provide constitutionally-adequate medical care to prisoners within its

custody.

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3. The parties’ designated experts/consultants jointly recommended that Dr. Nicholas Scharff, the former Medical Director for the Commonwealth of Pennsylvania Department of Corrections, be appointed to serve as the Compliance Monitor who will undertake a periodic, on-going evaluation of the VDOC’s performance of its obligations to provide constitutionally-adequate medical care to the women residing at FCCW in accordance with the requirements of the Eighth Amendment and the provisions of the parties’ Settlement Agreement. Dr. Scharff has accepted the appointment.
4. At the point in time at which the tasks described in the preceding paragraphs, which are well underway, have been completed, the MOU gives the parties a period of thirty (30) days within which to complete the preparation of their written Settlement Agreement.
5. Because the Plaintiffs sought and successfully obtained certification of a class in this case (see ECF Dkt. Nos. 188, 189), the parties’ Settlement Agreement must be submitted to this Court for approval pursuant to Fed. R. Civ. P. 23(e), upon the provision of reasonable notice to affected class members regarding the terms of the Agreement and the conducting of a Fairness Hearing at which any submissions by class members in favor of or opposed to the Agreement may be presented to and considered by the Court.
6. Based on the degree of progress made by the parties thus far under the provisions of the MOU, they believe it is reasonable and realistic to project that they will present their written Settlement Agreement to the Court by no later than May 28, 2015, with the Class Notice period and scheduling of the Fairness Hearing to proceed as expeditiously as possible thereafter.
7. Under the MOU, the parties are obligated to exercise their best efforts to reach a negotiated resolution concerning the measure of attorneys’ fees and litigation costs incurred by the Plaintiffs that they shall recover from the VDOC. If the parties are unable to agree, the
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Plaintiffs may submit a petition to this Court for a determination of the measure of fees and costs

they are to be awarded as the prevailing parties in this action pursuant to 42 U.S.C. § 1988.

8. Counsel for the parties would be pleased to respond to any questions or concerns

the Court may have with respect to any of the information set forth above.

DATED: April 21, 2015

Respectfully submitted,

Mary C. Bauer, VSB No. 31388 (mary@justice4all.org) Abigail Turner, VSB No. 74437 (abigail@justice4all.org) Brenda E. Castañeda, VSB No. 72809 (brenda@justice4all.org) Anglea Ciolfi, VSB No. 65337 (anglea@justice4all.org) Erin M. Trodden, VSB No. 71515 (erin@justice4all.org) Ivy A. Finkenstadt, VSB No. 84743 (ivy@justice4all.org) LEGAL AID JUSTICE CENTER 1000 Preston Ave., Suite A Charlottesville, VA 22903 (434) 977-0553

Richard C. Vorhis, VSB No. 23170 (rvorhis@oag.state.va.us) J. Michael Parsons, VSB No. 68520 (jparsons@oag.state.va.us) James M. Isaacs, VSB No. 38232 (jiaacs@oag.state.va.us) Kate E. Dwyre, VSB No. 82065 (kdwyer@oag.state.va.us) Correctional Litigation Section, Criminal Justice and Public Safety Division OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, VA 23219 (804) 784-0046

and

By: /s/J. Michael Parsons

Deborah M. Golden (admitted pro hac vice) (Deborah_Golden@washlaw.org) Elliot Mincberg WASHINGTON LAWYERS’ COMMITTEEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000

Attorneys for Defendants

and

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Theodore A. Howard (admitted pro hac vice) (thoward@wileyrein.com) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000 By: /s/Brenda E. Castañeda
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of April 2015, a true and correct copy of the foregoing Joint Status Report Regarding Settlement was served via electronic mail upon the following:
Richard C. Vorhis, Esq. (rvorhis@oag.state.va.us) J. Michael Parsons, Esq. (jparsons@oag.state.va.us) Correctional Litigation Section, Criminal Justice and Public Safety Division OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, VA 23219 Attorneys for Defendants
/s/Brenda E. Castañeda Brenda E. Castañeda
Case 3:12-cv-00036-NKM Document 209 Filed 04/21/15 Page 5 of 5 Pageid#: 4017

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, et al., v. HAROLD W. CLARKE, et al.,

) Plaintiffs, )
) ) ) ) ) ) Defendants. )

CASE NO. 3:12-CV-00036
FINDINGS OF FACT AND CONCLUSIONS OF LAW
By: Norman K. Moon United States District Judge

This civil rights class action is before the Court after a fairness hearing regarding final approval of the parties’ proposed settlement. Plaintiffs filed proposed findings of fact and conclusions of law, which Defendants reviewed in advance of filing and with which they concur. (Dkt. no. 255 at 1). Plaintiffs also moved for attorneys’ fees and, after negotiations, the parties have submitted proposed supplemental findings and conclusions on that issue. (Dkt. no. 259). This case has been thoroughly and fairly litigated, and the proposed settlement is now ripe for final approval, as is a ruling regarding attorneys’ fees.
Prisoners at the Fluvanna Correctional Center for Women (“FCCW”) brought suit in July 2012, alleging violations of the Eighth Amendment’s prohibition on cruel and unusual punishment based on substandard medical care. Defendants unsuccessfully moved to dismiss the case. (See, e.g., dkt. nos. 33, 76). After extensive discovery, the parties filed cross-motions for summary judgment. (Dkt. nos. 135, 137). Additionally, Plaintiffs sought certification of a class of present and future prisoners at FCCW. (Dkt. no. 131). The Court certified the class under Fed. R. Civ. P. 23(b)(2). (Dkt. nos. 188, 189). The Court also granted Plaintiffs’ motion for partial summary judgment and denied Defendants motion for summary judgment. (Dkt. nos. 201, 202). With a bench trial imminent, the parties notified the Court on November 25, 2014

1
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that they had reached a settlement in principle. (Dkt. no. 203). After lengthy negotiations over several months, the parties submitted a consent motion for preliminary approval of their settlement, which was granted. (Dkt. nos. 220, 221-1, & 222).
In evaluating the appropriateness of final approval against the relevant legal standards, the Court draws upon its familiarity with the facts and history of the case, the evidence previously placed in the record, testimony from the fairness hearing, and the parties’ proposed findings of fact and conclusions of law. The Court also has considered the handful of objections to the proposed settlement. For the reasons that follow, final approval of the settlement agreement will be given.
PROCEDURAL HISTORY Plaintiffs, prisoners residing at FCCW, a facility of the Virginia Department of Corrections (“VDOC”), initiated this class-action lawsuit on July 24, 2012, pursuant to the Eighth Amendment to the Constitution of the United States and 42 U.S.C. § 1983, seeking declaratory and injunctive relief with respect to alleged constitutionally-deficient medical care afforded to themselves and all other women residing at FCCW. Plaintiffs contended the deficient medical care reflects deliberate indifference on the part of the VDOC Defendants to Plaintiffs’ serious medical needs. The complaint, subsequently amended, provided detailed allegations of insufficient medical care: e.g., prison officials changing or disregarding the recommendations or prescriptions of medical professionals; failure to timely respond to medical emergencies or to non-emergencies such that medical conditions worsened; failure to administer medications or doing so under extreme conditions (such as in inclement weather at two or three o’clock in the morning); insufficient medical staffing; refusal to provide medical services on
2
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grounds of cost or pretextual security concerns; and the failure to treat known, obvious, or
suspected medical conditions such as MRSA, cancer, or diabetes.
On December 11, 2012 and October 4, 2013, the Court entered opinions denying various
motions to dismiss the complaint for failure to state a claim. (Dkt. nos. 33 &76). The case
proceeded for several more months in discovery. In August and September of 2014, Plaintiffs
filed a motion to certify the class and for partial summary judgment, while Defendants also
moved for summary judgment. (Dkt. nos. 131, 135, 138). By Memorandum Opinion and Order
dated November 20, 2014, the Court granted Plaintiffs’ motion for class certification and
certified a class consisting of “all . . . women who currently reside or will in the future reside at
FCCW and have sought, are currently seeking or will seek adequate, appropriate medical care for
serious medical needs, as contemplated by the Eighth Amendment to the U.S. Constitution,”
pursuant to Fed. R. Civ. P. 23(b)(2). (Dkt. no. 188).
Thereafter, the Court entered an Order granting partial summary judgment in favor of the
Plaintiffs and denying the VDOC Defendants’ motion for summary judgment in its entirety on
November 25, 2014, holding, inter alia, that:
 Plaintiffs established, as a matter of law, that they fully and properly exhausted all prelitigation administrative remedies available to them, as required by applicable provisions of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e (See Memorandum Opinion dated November 25, 2014, at 23-33 & nn.8-10 (Dkt. no. 201));
 Plaintiffs established, as a matter of law, that individually and as a class, they suffer from “serious medical needs” as a predicate to a viable cause of action for “deliberate indifference” under the Eighth Amendment (Id. at 13-18 & n.6);
 Plaintiffs established, as a matter of law, that the VDOC Defendants have a nondelegable duty under the Eighth Amendment to provide constitutionally-adequate medical care to all prisoners within their custody, including the Plaintiffs (Id. at 8-13); and that
 VDOC Defendants failed, as a matter of law, to demonstrate on the basis of material facts as to which there is no genuine issue in dispute, that they could not be found liable for
3
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providing insufficient medical care, or failing to provide medical care under circumstances in which such care was due, reflecting “deliberate indifference” to the Plaintiffs’ and the class members’ serious medical needs in violation of the Eighth Amendment. (Id. at 33-46.) The parties negotiated the proposed Settlement, first agreeing in principle to a resolution, which they then reduced to writing on November 25, 2014 in the form of a Memorandum of Understanding (“MOU”) regarding the substance and content of the Settlement and the process by which a final agreement would be reached. The parties notified the Court that they had reached an agreement in principle that same day, on the eve of trial. (Dkt. no. 204). Since that time, the parties have engaged in extensive communications by telephone, e-mail, and three inperson meetings involving counsel, VDOC officials, medical experts, and at times the proposed Settlement Compliance Monitor, Dr. Nicholas Scharff. The purpose of these meetings and correspondence was to finalize the Settlement Agreement terms, as well as changes to the VDOC Operating Procedures that governed the provision of medical care at FCCW, as contemplated in the parties’ MOU. A final, fully-executed Settlement Agreement, with Appendices and Exhibits thereto, were submitted to the Court on September 15, 2015. See Dkt. nos. 220 & 221. On September 16, 2015, the Court granted preliminary approval of the class settlement. (Dkt. no. 222). The Defendants subsequently certified on September 24, 2015 that notice of the proposed settlement and class members’ right to object was distributed to each prisoner housed at FCCW. (Dkt. nos. 224 & 224-1). The Defendants further certified that notice of the Settlement was also sent on September 22, 2015 to the appropriate federal officials as required by the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715. (Dkt. no. 223). As described in further detail below, this Court conducted a Fairness Hearing on November 9, 2015 to receive evidence and testimony to assist in evaluating whether the
4
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settlement of this action on the terms and conditions provided for in the proposed Settlement
Agreement is fair, reasonable, and adequate.
FINDINGS OF FACT
Summary of the Proposed Settlement Agreement
The Settlement Agreement in this case consists of two broad components: review and
revision of VDOC policies governing medical care at FCCW, and monitoring of FCCW’s
compliance by an independent monitor. (Dkt. no. 221-1 (Settlement Agreement)). Plaintiffs and
Defendants, in consultation with their respective experts and Dr. Scharff (the proposed
compliance monitor), agreed to revisions of certain VDOC Operating Procedures, which, as
revised, will provide guidance for the provision of enhanced medical care at FCCW. The
provisions revised are:
OP 411.1 Offender Transportation [Non-Public] OP 420.2 Use of Restraints and Management of Offender Behavior [Non-Public] OP 425.2 Hospital Security [Non-Public] OP 701.1 Health Services Administration OP 720.1 Access to Health Services OP 720.2 Medical Screening Classification and Levels of Care OP 720.3 Health Maintenance Program OP 720.4 Co-Payment for Health Care Services OP 720.5 Pharmacy Services OP 730.1 Mental Health Services: Administration OP 730.2 Mental Health Services: Screening, Assessment and Classification OP 730.5 Mental Health Services: Suicide Prevention and Behavior Management OP 740.1 Infectious Disease Control OP 810.1 Offender Reception and Classification
(Dkt. no. 221-1, App’x. A).
The parties also negotiated and agreed upon a set of additional medical guidelines and
standards addressing issues and problems at FCCW that Plaintiffs alleged in their Complaint and
developed throughout the pendency of this case. These subjects include, inter alia, provider
staffing levels, the medical intake process, comprehensive health assessments, the sick call
5
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process, the co-pay policy, diagnosis and treatment, response to emergencies, infirmary conditions, chronic care, infectious disease control, utilization management, continuity of medications and treatment supplies, physical therapy, medical grievances, access to information regarding care, accommodations for prisoners with disabilities, staff training, care and release of terminally-ill prisoners, conduct of mortality reviews, and criteria for measuring performance and quality improvement and contractor monitoring. (Dkt. no. 221-1 at 6-15).
The parties also agreed to create an additional Operating Procedure for FCCW regarding reasonable accommodations for physical disabilities of incarcerated individuals consistent with the mandate of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and its implementing regulations and standards. (Doc. no. 221-1 at 15). This procedure will be developed in consultation with the parties’ respective medical experts and the compliance monitor within 120 days of the effective date of the settlement agreement. (Id.).
Lastly, the parties agreed that they will develop an Operating Procedure establishing concrete and definitive practices and procedures to govern VDOC’s self-evaluation with respect to the quality and quantity of the medical care it provides to prisoners at FCCW on an ongoing basis in accordance with widely-recognized Continuous Quality Improvement (“CQI”) concepts. This procedure will be developed in consultation of the parties’ respective medical experts and the compliance monitor within 120 days of the effective date of the settlement agreement. (Id.).
The parties jointly selected Dr. Nicholas Scharff, M.D., MPH, the former Chief Medical Officer of the Commonwealth of Pennsylvania Department of Corrections, to serve as the Settlement Compliance Monitor. The parties believe that Dr. Scharff is appropriately qualified for this role.1 Dr. Scharff’s curriculum vitae is attached as Appendix C to the settlement

1

Based on a review of Dr. Scharff’s curriculum vitae and his testimony at the fairness

hearing, the Court agrees with the parties’ assessment.

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agreement. Dr. Scharff will develop performance monitoring tools for each of the subjects listed in Appendix B of the settlement agreement in regard to which a constitutionally-adequate level of care is owed. This will involve detailed tracking of samples of representative data and measuring and re-measuring over time to determine whether progress has been made. (See Dkt. no. 251 (Transcript of Nov. 9, 2015 Fairness Hearing) at 50-51 (hereinafter “Hr’g Tr.”)).
Under the settlement, Dr. Scharff initially will visit FCCW four times a year. He will interview patients and staff and gather data while on-site, and will analyze the data off-site and provide a report reflecting the results of each visit to the parties. (Dkt. no. 221-1 at 16-17; Hr’g Tr. at 48). On his visits, Dr. Scharff will have access to speak confidentially with personnel and prisoners, as well as review facilities, medical files, and grievances as he deems necessary. The visits will occur over the period of a minimum of three years. (Dkt. no. 221-1 at 16-17, 20-21; Hr’g Tr. 48). Dr. Scharff will identify to the parties any areas or subjects where he finds that VDOC is not in compliance with the provisions of the settlement or Eighth Amendment standards. VDOC will have 30 days from the date of such notice within which to correct any areas of noncompliance, after which, if the problems persist, Plaintiffs will have the option of filing a motion in this Court to enforce the settlement, seek contempt sanctions, or both. (Dkt. no. 221-1 at 19).
In summary, the Settlement Agreement addresses with particularity each of the problems Plaintiffs identified in their Complaint and fully developed in the record with the evidence supporting their memorandum in support of the motion for class certification (dkt. no. 132) and their memorandum in support of their motion for partial summary judgment (dkt. no. 138).
Testimony at the Fairness Hearing Plaintiff Cynthia Scott. Cynthia Scott has resided at FCCW since 2003. She testified
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that, at age 31, she had very few health problems when she first arrived at FCCW and led an active lifestyle of yoga, basketball, and other activities. Her health has deteriorated and now she requires the use of a wheelchair or cane for mobility and is in constant pain. (Hr’g Tr. at 6:108:9). Ms. Scott testified about problems at FCCW with delayed diagnoses, following the orders of medical specialists, denial of necessary medications, and FCCW’s failure to maintain an adequate supply of and provide prescribed medications. For example, Ms. Scott testified that FCCW failed to seek and obtain for her necessary treatment from a specialist for the bone disease in her wrists, shoulders, and hips. (Hr’g Tr. at 8:10-10:15).
Ms. Scott also testified that FCCW delayed diagnosing a potentially deadly blood clot in 2012, instead telling her that her cold, swollen, and icy foot that persisted over six months was a symptom of arthritis. (Hr’g Tr. at 10:16-13:18). Ms. Scott described unsanitary conditions at the Infirmary – including blood and feces on the walls – and difficulties in receiving prompt attention from a nurse when patients push the call button. (Hr’g Tr. at 15:17-22). She further testified that residents continue to experience problems with the medical care at FCCW, including the pharmacy running out of prescribed medications and delays responding to emergency calls for medical help. (Hr’g Tr. at 19:13-21:23). Ms. Scott believes that, with effective outside monitoring, the Settlement Agreement will resolve the problems at FCCW. (Hr’g Tr. at 22:25-23:3).
Plaintiff Toni Hartlove. Toni Hartlove has resided at FCCW since 1999. (Hr’g Tr. at 25:3-4). Ms. Hartlove testified about problems at FCCW concerning deficiencies with respect to medication administration, chronic care, pain management, and infirmary conditions. For example, she testified that she takes two medications daily that are necessary to prevent her from having seizures. (Hr’g Tr. at 25:21-26:1). These seizures are terrifying. She is immobilized and
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cannot speak or move. The seizures are also psychologically scarring. She feels afraid and worries that she may physically injure herself in a fall. (Hr’g Tr. at 26:21-27:16). Her medications have lapsed three times in just the last year, causing grand mal seizures each time. (Hr’g Tr. at 28:7-10). Ms. Hartlove believes the medical staff at FCCW frequently diverts medication prescribed to other inmates and gives it to her when FCCW prematurely runs out of her medication. Id.
Ms. Hartlove has also been experiencing leg pain, and was just diagnosed with compressed discs. (Hr’g Tr. at 29:14-20). Although the pain is so intense that she cannot walk, she has been provided no prescription for pain medication except for 7-10 days of Motrin, and was then simply told to buy Advil or Tylenol at the commissary. The over-the-counter medications reduce the pain but do not sufficiently control it. (Hr’g Tr. at 33:4-20). Ms. Hartlove’s back condition will require surgery, and she is very worried about what will happen to her while she recovers in the infirmary because of the lack of adequate nurse staffing and the unsanitary conditions she has seen there. There are not enough nurses to pay appropriate attention to the patients and their needs. Infirmary patients are not allowed recreation, exercise, to go to school, to perform their jobs, to attend church services, or to participate in other activities. Most infirmary patients are not allowed to use the commissary. (Hr’g Tr. at 31:1933:3). Before she stopped working because of her back pain, Ms. Hartlove worked as a laundry technician for 35 cents an hour, earning about $42 a month. From that amount, she must buy all her necessities at the commissary, in addition to paying sick call co-pays and buying needed medications. (Hr’g Tr. at 33:18 -34:13). Ms. Hartlove testified that the Settlement Agreement will be a fair and adequate solution to the problems identified in the lawsuit if it is followed. (Hr’g Tr. 25:17-20).
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Plaintiff Lucretia Robinson. Lucretia Robinson has resided at FCCW since 2013. (Hr’g Tr. at 35:19-20). Ms. Robinson testified about problems with medical intake of new prisoners at FCCW, as well as problems with medication administration, treatment of prisoners with physical disabilities, and ongoing delays in pill line and provider access. For example, she testified that when she came to FCCW, she brought with her a walker and a cane she needed to move around because of an accident in which she was involved several years before. Both were taken away from her at intake, and as a result she had difficulty moving around, falling on multiple occasions. She also experienced a significant delay in getting a walker that had wheels, which she needed, and when she finally got it, she was charged a co-pay of almost $90. (Hr’g Tr. at 39:8-40:9).
Further, Ms. Robinson testified that she was diagnosed with and treated for breast cancer while in the regional jail, and that part of her prescribed long-term cancer treatment was a daily regimen of tamoxifen. When she arrived at FCCW, her prescription for tamoxifen was not refilled, and she was told that it would need to be approved before she could receive it. She had a lapse of approximately six weeks until she began receiving tamoxifen again. Even after her prescription for tamoxifen was approved, she testified that there have been other times when it has been allowed to lapse. (Hr’g Tr. at 36:3-38:3). Finally, she testified that the pill line, i.e., the process by which medication is distributed to prisoners, experiences frequent delays because the nurses who administer medication are often called away to deal with emergencies elsewhere. (Hr’g Tr. at 40:16-41:10). With regard to the settlement, Ms. Robinson testified that intensive monitoring will be critical to the success of the settlement. (Hr’g Tr. at 41:20-42:4).
Dr. Erika Ramsdale. Dr. Erika Ramsdale is an oncologist and Assistant Professor of Medicine at the University of Virginia Medical School (“UVA”). (Hr’g Tr. at 73:11-24). As
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part of her duties at UVA, Dr. Ramsdale treated Debbie Daley, a prisoner at FCCW, for locally advanced rectal cancer. (Hr’g Tr. at 73:25-74:6). Ms. Daley had been diagnosed with colorectal cancer shortly after arriving at FCCW in July 2013. (Dkt. no. 139, Ex. 37, Decl. Debbie Daley ¶ 4; Hr’g Tr. at 74:11-12). Dr. Ramsdale testified that FCCW medical personnel repeatedly changed Ms. Daley’s oncologist’s recommendations for long-acting and short-acting pain medications, leaving her in excruciating pain. (Hr’g Tr. at 74:24-75:3, 76:12-78:4).
In November 2013, Ms. Daley’s UVA oncology specialists decided that she needed chemotherapy instead of surgery because her tumor had not shrunk sufficiently as a result of radiation treatment. (Hr’g Tr. at 78:17-79:15). The oncology team recommended prechemotherapy evaluation in November 2013, which Ms. Daley did not receive until April 2014 because FCCW failed to take her to a scheduled UVA appointment in February. (Hr’g Tr. at 79:18-23). FCCW further delayed the chemotherapy treatment until July 2014, by unsuccessfully attempting to transfer her treatment from Dr. Ramsdale to the Medical College of Virginia and due to scheduling delays caused by medical personnel at FCCW. (Hr’g Tr. at 81:182:7; 82:24-83:7).
In February 2014, Dr. Ramsdale called Dr. Patricia Rodgers at FCCW to inquire why Ms. Daley missed her scheduled appointment. Dr. Rodgers said she did not know but that “she had no control over transportation and that the prison could cancel it for any reason.” (Hr’g Tr. at 79:16-81:4). Ms. Daley had an abscess on her buttocks related to her cancer. When it became infected in June 2014, Dr. Carter, medical director at FCCW, refused to treat her with antibiotics for three weeks. When she arrived at UVA for an appointment to set up her chemotherapy treatments on July 2, 2014, Dr. Ramsdale found that Ms. Daley was febrile, septic, and in great pain. Dr. Ramsdale admitted Ms. Daley to the UVA Hospital for several weeks to treat her
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infection with IV antibiotics and then to begin chemotherapy. (Hr’g Tr. at 82:24-84:24, 87:1619).
Dr. Ramsdale was so concerned about Ms. Daley’s condition upon her arrival at the UVA Hospital on July 2, 2014 that she contacted the UVA Ethics Consult Service with respect to her concerns of medical neglect. Dr. Ramsdale accepted the UVA Ethics’ recommendation to declare Ms. Daley an “unsafe discharge” unless FCCW would agree, among other things, to prompt transportation to any appointments, appropriate pain treatment, compliance and followthrough with chemotherapy treatments, and antibiotic treatment of further infections. (Hr’g Tr. at 85:9-87:15). After keeping Ms. Daley at UVA for four or five weeks as an unsafe discharge, Dr. Ramsdale finally agreed to discharge Ms. Daley back to the prison on the condition that they comply with the conditions she had outlined in a letter. Dr. Ramsdale testified that FCCW complied with some of the conditions, but the prison failed to provide appropriate pain medication and other supportive treatments. (Hr’g Tr. 86:12-88:3). Dr. Ramsdale recommended medical clemency and hospice for Ms. Daley, who was granted medical clemency in late November 2014. Ms. Daley died shortly thereafter, in early 2015. (Hr’g Tr. at 89:21-90:2). Dr. Ramsdale testified that Ms. Daley would not have suffered to the extent she did if FCCW had not been indifferent to her symptoms. (Hr’g Tr. at 90:6-13).
Dr. Nicholas Scharff. Dr. Scharff has experience serving as a compliance monitor in another correctional system. (Hr’g Tr. at 45:3-46:21). He is familiar with the provisions of the Settlement Agreement and prepared and able to perform the monitoring required. (Hr’g Tr. at 46:22-47:5). One aspect of Dr. Scharff’s job as Compliance Monitor is to ensure that the VDOC Operating Procedures have in fact been rewritten and that they are being complied with as revised. In addition, Dr. Scharff is to monitor the VDOC’s performance with respect to a list
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of specific functions and aspects of care listed in Appendix B to the Settlement Agreement. (Hr’g Tr. at 47:24-49:22). Dr. Scharff’s two overarching goals as Compliance Monitor are: (i) to establish systematic practices in the medical care provided at FCCW that meet the constitutional standard of care; and (ii) to change the health care culture at FCCW in ways that will outlast his term and ensure continued constitutionally-adequate care beyond the duration of the Settlement Agreement. (Hr’g Tr. at 47:6-49:3; 53:23-54:9). Dr. Scharff believes that the Settlement Agreement will effectively address each of the problems described by the Named Plaintiffs during their testimony if it is properly followed and implemented with real “buy-in” from all levels of the institution. (Hr’g Tr. at 52:3-20).
Written Objections to the Settlement Three class members filed objections to or comments on the settlement agreement prior to the fairness hearing on November 9, 2015, and three class members (including one named Plaintiff) filed comments after the hearing. These submissions, all supporting the need for improved medical care at FCCW, describe the negative experiences the class members had. Tennaire Durham (Dkt. no. 231). Ms. Durham notes no specific objection to the settlement, but rather recounts facts showing that it is needed by describing her adverse experiences in hopes that “it helps make things better for the future offenders” at FCCW. She writes she is “not asking to be a part of this lawsuit but [] would like to let [the Court] know about [her] personal experiences since arriving on Sept. 8, 2015.” She was transferred to FCCW after foot surgery, because FCCW ostensibly is a “medical” prison, but “calling this prison a ‘medical’ facility [is] laughable at best.” She relays that green drainage came from her foot and it became swollen, but there was a delay in treatment. Eventually, she was diagnosed with MRSA. The infirmary, she says, “is not a good place to stay,” and she was put in solitary
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conditions due to her MRSA infection, but the location was unsanitary. An unidentified doctor informed Ms. Durham that her foot also is fractured and that she should see a specialist at UVA, but in the month afterwards that appointment has not occurred. She also states that she is a diabetic but that her medicine was taken away from her. She confirms that—as Plaintiffs alleged—the “pill line” starts at 2:30 or 3:30 a.m.
Uetta Karen Warner (Dkt. no. 237). Ms. Warner “formally file[s] [her] objection” to the settlement on the grounds that it is “still very weak,” largely because she believes that VDOC will not address the known problems with medical care at FCCW. Nevertheless, her filing mainly recounts ongoing problems raised by the named Plaintiffs, thus suggesting that the settlement is needed.
Ms. Warner arrived at FCCW on June 10, 2015. She has “had to continually fight with the medical department to get the proper medications and treatments,” and has often received either other inmates’ medication or the wrong dosage. She was taken off medicine for high blood pressure, arthritis, migraines, asthma, and thyroid issues. She believes that if the Department of Corrections and staff “were truly concerned and were trying to provide adequate medical care, that they would have already started some means of rectifying these problems.” She asks that the Court to take her letter into consideration when making a “final decision” in this case.
Hope McRae Roe (Dkt. no. 234).2 Ms. Roe makes the most substantive and detailed

2

Ms. Roe’s filing was submitted with a cover page in which “[D]arlene [H]ope [F]ulmer”

and “[D]avid [B]ulkley [H]opkins,” of Columbia, South Carolina, purport to be representing her

as “counsel-in-fact.” (Dkt. no. 234 at ECF 1). Elsewhere—e.g., in the body of her objection and

in attachments—it is repeated that these individuals are “acting in capacity as counsel-in-fact and

exercising power-of-attorney” on her behalf, along with various other contentions about power

of attorney and so-called counsel in fact. (Id. at ECF 3, 23; dkt. no. 234-2). In the interests of

justice, the Court at the fairness hearing allowed these purported representatives of Ms. Roe to

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objections to the settlement. At the fairness hearing, the Compliance Monitor, Dr. Scharff, specifically addressed her objections upon questioning by the Court. Accordingly, the Court will summarize her objections and Dr. Scharff’s responses below.
Consideration of Objections at the Fairness Hearing At the fairness hearing, the Court invited anyone present who objected to the settlement to be heard. Mr. David Hopkins came forward, allegedly on behalf of Objector Hope McRae Roe, and was accompanying by a reticent woman who Mr. Hopkins represented to be Ms. Roe’s mother, Darlene. (Hr’g Tr. 64-65; see also supra footnote 2). Some of Mr. Hopkins’ concerns involved matters outside the scope of this case—for instance, segregated housing (id. at 68-69)— but others repeated or amplified those expressed in Ms. Roe’s written objections. (Id. at 65-66, 70). In any event, Mr. Hopkins was afforded the opportunity to make a full presentation to the Court. (Hr’g Tr. 64-71). In addition to Dr. Scharff’s direct and cross-examination, the Court asked him to respond to several of Mr. Roe’s written objections. Ms. Roe objected that the term “medical staff” as used in the Settlement Agreement is not defined and should be clarified so that no one without appropriate medical training, experience, and qualifications should be deemed medical staff. (Dkt. no. 234 at 11-12). In response, Dr. Scharff testified that the term “medically trained personnel” was the subject of considerable discussion in the context of the revising the Operating Procedures, and that he considers it important as Compliance Monitor to determine exactly what training the medical staff received, in order to determine that they are adequately trained and capable of providing effective levels of care. (Hr’g Tr. at 55-56).
make a substantial oral presentation. The Court also questioned the compliance monitor about Ms. Roe’s written concerns. See infra.
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Ms. Roe objected that the timely evaluation and treatment of medical needs, as referred to in the settlement agreement, is undefined, and should be clarified to mean within 24 hours, and that timely emergency care should be within 12 hours or less. (Dkt. no. 234 at 12, 17). In response, Dr. Scharff testified that he believes that the timeliness of an emergency response must be adequate to the circumstances of each situation, and nationally-recognized medical standards govern the timelines for response to various categories of medical need. He expects to review all of those time intervals in the course of his monitoring activities at FCCW. (Hr’g Tr. at 56).
Ms. Roe stated that the Settlement should contain a provision requiring documentation of medical events. (Dkt. no. 234 at 12). In response, Dr. Scharff stated that if there were a systematic practice of failing to properly document certain elements of medical care, he would consider that failure to fall short of a constitutional level of care. (Hr’g Tr. at 57).3
Ms. Roe wrote that co-pays should be suspended for nine months rather than six months under the settlement. (Dkt. no. 234 at 14). In response, Dr. Scharff indicated that the important factor is that when the co-pay system is reinstated, it should be fair and equitable. (Hr’g Tr. at 58).
Ms. Roe stated that MRSA and hepatitis treatment guidelines should be adopted. (Dkt. no. 234 at 15). In response, Dr. Scharff observed that those guidelines are addressed by the settlement. (Hr’g Tr. at 58). Dr. Scharff made the same point regarding when and under what conditions the morning pill line begins, another concern raised by Ms. Roe. (Dkt. no. 234 at 16; Hr’g Tr. at 58-59).

3

Plaintiffs’ counsel also responded that the settlement and Dr. Scharff’s duties as

compliance monitor contemplate “regular review of medical records” and grievances.

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Ms. Roe believes that chronic care patients should be monitored every month rather than
every six months when stable, as provided in the Settlement. (Dkt. no. 234 at 16-17). Dr.
Scharff disagreed, stating:
I think that—you know, that—anything that we decide to do for patients is really something else we’re deciding not to do for patients. It is not—even if you take all of the money out of it, the truth is people only have so much time and attention. And I think it is really important to make sure that people really do get everything they do need.
And in my practice for decades and in correctional practice, people with chronic illnesses don’t want to be seen every month. It is a pain in the neck. They have to stop doing what they are doing. When they need to come every month, they have to come every month. And when they don’t need to come every month, I think twice a year is actually a little bit more frequent than the usual standard outside of corrections.
(Hr’g Tr. at 59). Similarly, as to Ms. Roe’s objection that outside referrals should be
accomplished within 14 days rather than 30 day (Dkt. no. 234 at 18), Dr. Scharff stated that the
timing should depend on the urgency of the referral, but that routine referrals could be handled within 30 days. (Hr’g Tr. at 60).4
Ms. Roe thinks the settlement should include a requirement that reports logging and
summarizing grievances be issued every three months. (Dkt. no. 234 at 19). Dr. Scharff stated
that he would be reviewing grievances and the manner in which FCCW responds to them as part
of his monitoring process and that he anticipated making frequent reports on the grievance
process, at least initially. (Hr’g Tr. at 61).
Objections and Comments Filed After the Fairness Hearing
Additionally, after the fairness hearing, two class members sent letters or noted

4

Likewise, upon questioning about when test results should be competed and

communicated, Dr. Scharff observed that tests results should be received by FCCW within 72

hours but the timeline of communication with the patient about the results depends upon the

nature of the test, the result, and corresponding urgency. (Hr’g Tr. at 60-61).

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objections to the settlement agreement, and Karen Powell, one of the class representatives, also sent a letter directly to the Court. (Dkt. nos. 245, 246, 250). All of these letters discussed the death of a prisoner, Ines Ford (known to some at FCCW as “Wheels”) on November 10 or 11, 2015. They underscored the need for improved medical care and effective monitoring at FCCW.
Jennifer Lynn McGuire (Dkt. no. 245). Ms. McGuire states that she objects to the settlement “because [the conditions at FCCW] just keeps getting worse[.]” She relays that a Ms. Ford died on November 10 or 11, 2015. She asserts that the “Compliance Monitor is failing on their part of the job.” (Of course, the Compliance Monitor has not yet commenced his duties because the settlement had not been given approval.) She asks the Court to “please make the right decision.”
B.D. Williams (Dkt. no. 250). Like Ms. McGuire, Ms. Williams also relays the passing of Ms. Ford and states her belief that it was a preventable death.
Named plaintiff Karen Powell (Dkt. no. 246). As with Ms. McGuire and Ms. Williams, Plaintiff Powell shared with the Court Ms. Ines’ death, and stated that she was young, relatively health, and died of pneumonia because she was not supplied with needed medication. Plaintiff Powell does not have objections to the settlement, but wrote the Court to appraise it of Ms. Ines’ death and to share her concerns with the state of care at FCCW.
CONCLUSIONS OF LAW The claims of a certified class can only be settled with the Court’s approval “after a hearing and on finding that [the settlement] is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). “The primary concern addressed by Rule 23(e) is the protection of class members whose rights may not have been given adequate consideration during the settlement negotiations.” In re Jiffy Lube Sec. Litig., 927 F.2d 155, 158 (4th Cir. 1991). “As the Fourth
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Circuit has explained, the district court must engage in a two-level analysis in evaluating a
settlement’s ‘fairness’and ‘adequacy.’” Domonoske v. Bank of Am., N.A., 790 F. Supp. 2d 466,
472 (W.D. Va. 2011). “The court also must determine whether the class was given reasonable
notice of the settlement.” Id.
A class settlement is fair if it “was reached as a result of good faith bargaining at arm’s length, without collusion.” In re Jiffy Lube Sec. Litig., 927 F.2d at 159. In making this determination, a court should consider “(1) the posture of the case at the time settlement was proposed, (2) the extent of discovery that had been conducted, (3) the circumstances surrounding the negotiations, and (4) the experience of counsel in the area of ... class action litigation.” Id.
Whether a settlement is adequate depends upon “(1) the relative strength of the plaintiffs’ case on the merits, (2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial, (3) the anticipated duration and expense of additional litigation, (4) the solvency of the defendants and the likelihood of recovery on a litigated judgment, and (5) the degree of opposition to the settlement.” Id.
Bicking v. Mitchell Rubenstein & Associates, P.C., No. 3:11CV78-HEH, 2011 WL 5325674, at
*4 (E.D. Va. Nov. 3, 2011) (emphasis in original); see also Scardelletti v. Debarr, 43 F. App’x
525, 528 (4th Cir. 2002) (reviewing factors); Domonoske, 790 F. Supp. 2d at 473-74 (same).
I. The Proposed Settlement is Fair
A. Case posture
In evaluating the first fairness factor, the Court must assess “how far the case has come
from its inception, since a settlement in an immature case might point towards collusion, while a
mature case will point in the opposite direction.” Domonoske, 790 F. Supp. 2d at 473. This
factor strongly favors approval because the case settled in principle on the precipice of a multi-
week trial after (a) two rounds of motions to dismiss, (b) extensive discovery, and (c) briefing on
cross-motions for summary judgment. Nine months of exhaustive settlement negotiations were
needed to finalize the agreement and present it for preliminary approval. It is difficult to
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conceive of a case more “mature” for settlement. Much like the situation in Beaulieu v. EQ
Industrial Services, Inc., “[this] case was being actively litigated when the settlement was
reached. Indeed, the case ha[d] been aggressively prosecuted and defended since its inception.”
No. 5:06-cv-400-BR, 2009 WL 2208131, at *24 (E.D.N.C. July 22, 2009); see also Mills Corp.,
265 F.R.D. at 254. (“[I]n cases in which discovery has been substantial and several briefs have
been filed and argued, courts should be inclined to favor the legitimacy of a settlement.”
(citation omitted)); Clark, 2004 WL 256433, at *7 (“[I]t is clear from the docket . . . that this
matter was hard fought from its initiation through contentious class certification proceedings.”).
B. Extent of discovery
This factor “requires the court to determine whether the case was well-enough developed
for [the parties] to appreciate the full landscape of their case.” Domonoske, 790 F. Supp. 2d at
473. Clearly, extensive discovery characterized this case and likewise favors approval. The
parties even needed occasional intervention from the Court to resolve discovery disputes. (E.g.,
dkt. no. 88). And as the parties observe, they:
conducted and completed some 27 depositions, including depositions of the four original Named Plaintiffs, expert witnesses for each side, VDOC officials, and numerous VDOC and medical care contractor fact witnesses. Full discovery had been completed well before settlement negotiations began, “thereby facilitating an informed decision by the parties regarding settlement.” Beaulieu, 2009 WL 2208131, at *24; see Jiffy Lube, 927 F.3d at 159 (“We have held that a reasonable judgment on the possible merits of the case is best achieved when all discovery has been completed and the case is ready for trial.” (dictum) (Citation omitted.)); Mills Corp., 265 F.R.D. at 254 (“Where . . . ‘discovery was largely completed as to all issues and parties,’ the second [fairness] factor militates toward approval of settlement.” (Citation omitted)).
(Dkt. no. 255 at 21).
C. Circumstances surrounding settlement negotiations
The objective of this factor is to ensure that counsel entered into settlement negotiations on behalf of their clients after becoming fully informed of all
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pertinent factual and legal issues in the case. This requires an examination of the negotiating process by which the settlement was reached in order to ensure that the compromise is the result of arm’s-length negotiations necessary to effective representation of the class’s interests. In re The Mills Corp. Sec. Litig., 265 F.R.D. 246, 255 (E.D. Va. 2009) (internal citations and quotations omitted). As explained above, a settlement in principle was reached after hard-fought litigation of this case. Even then: The Parties took a full nine months thereafter to complete [the settlement] process, during which their representatives – counsel and medical experts for both sides and VDOC officials – engaged in extensive negotiations by telephone conference, written communications and three lengthy in-person meetings to hash out and agree upon specific terms and conditions. These efforts were protracted and, according to the Parties’ counsel, occasionally contentious. (Dkt. no. 255 at 21-22). As counsel for Plaintiffs understandably observed at the fairness hearing, the settlement process included “sometimes difficult negotiations and accommodations on both sides.” (Hr’g Tr. at 92; see id. at 94 (speculating that the length and extent of the parties’ negotiations “probably tried the Court’s patience”); id. at 53 (explaining Compliance Monitor’s participation in settlement process that was “[l]onger than we thought”)). This factor also heavily favors approval. Mills Corp., 265 F.R.D. at 255 (“this settlement was not entered into haphazardly with an undeveloped understanding of the merits of the case. . . . Negotiations were sufficiently thorough, contentious, and at arm’s length to ensure the propriety of [the Parties’] decision to enter into the settlement”); Beaulieu, 2009 WL 2208131, at *25 (“The settlement negotiations also appear clearly to have been adversarial. Indeed, plaintiffs represent that they were not only at arm’s length and without collusion, but contentious and sometimes heated. . . . These representations are consistent with the tenor of counsel’s filings and in-court presentations on contested matters, which have demonstrated zealous pursuit of their respective clients’ interests.”).
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D. Views and experience of counsel
Knowledgeable and experienced counsel on both sides of this dispute have expressly
endorsed the Settlement Agreement as fair, adequate and in their respective clients’ best
interests. (See dkt. no. 221 at 9-10; Hr’g Tr. at 93-94). The Court finds no basis to disagree.
Furthermore, in granting the Plaintiffs’ motion for class certification, the Court already
recognized the experience and qualifications of Plaintiffs’ counsel in this matter.
Plaintiffs are represented by experienced and qualified counsel who are competent to conduct this action and fairly represent the interests of plaintiffs and the class as a whole. The Legal Aid Justice Center and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs are well-known public interest legal services organizations with substantial experience with respect to and involvement in civil rights litigation, including class actions, in Virginia and, as regards to the Washington Lawyers’ Committee, other jurisdictions. Those two organizations are joined as co-counsel by the Washington, D.C. law firm of Wiley Rein LLP, which is representing the Plaintiffs in a pro bono capacity. Wiley Rein is a firm of more than 275 attorneys that handles complex civil litigation matters, and its lead counsel in this case has significant experience in prisoners’ civil rights cases and class actions.
(Dkt. No. 188 at 30; see also Hr’g Tr. at 96 (recognizing and expressing gratitude of efforts by
all parties’ attorneys for working to remedy “this situation”). The Court likewise notes that the
Assistant Attorneys General representing Defendants specialize in prisoners’ civil rights
litigation and are fully informed with respect to the matters at issue here.
Based on the foregoing, the Court finds that the settlement meets the four fairness factors,
all of which “indicate that the settlement here falls within the range of . . . final approval.”
Beaulieu, 2009 WL 2208131, at *25.
II. The Proposed Settlement is Adequate
In evaluating the five adequacy factors, “[e]ssentially, the court should weigh the benefits
of the settlement to the class against the strength of the defense, and the expense and uncertainty
of the litigation while accounting for class objections.” Domonoske, 790 F. Supp. 2d at 474.
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“The most important factor to be considered in determining whether there has been such a clear abuse of discretion is whether the trial court gave proper consideration to the strength of the plaintiffs’ claims on the merits.” Flinn v. FMC Corp., 528 F.2d 1169, 1172 (4th Cir. 1975).
A. Strength of Plaintiffs’ case Plaintiffs’ case on the merits here is strong, especially after the Court’s rulings on class certification and on summary judgment. As of the time they reached an agreement with the Defendants to settle this action, Plaintiffs had defeated the Defendants’ threshold motion to dismiss, prevailed on their own motion for class certification, and were anticipating a favorable disposition from the Court on the parties’ cross-motions for summary judgment, which the Court issued on November 25, 2014, granting the Plaintiffs’ motion for partial summary judgment, and denying the Defendants’ motion for summary judgment in its entirety. Regarding the latter, the Court determined, on the basis of a comprehensive summary judgment record, that “a fact-finder could reasonably determine that the VDOC is deliberately indifferent to the serious medical needs of the Plaintiffs and the entire class of women residing at FCCW.” (Dkt. no. 201 at 40; see also dkt. no. 222, ¶ 4 at 2 (“The Plaintiffs have presented ample evidence in their filings supporting class certification, their Motion for Partial Summary Judgment, and their response in opposition to the VDOC’s Motion for Summary Judgment, enabling a fact-finder to reasonably conclude that the VDOC Defendants are or have been deliberately indifferent to the serious medical needs of the Plaintiff class[.]”)). These considerations suggest that, at a minimum, the Plaintiffs presented a viable case capable of being sustained by a judgment on the merits after trial.5 B. Potential hindrances to success at trial

5

Consistent with their position, Plaintiffs have extracted a detailed settlement agreement

that provides much-needed relief to the class

23
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Nevertheless, the confidence of Plaintiffs’ counsel in prevailing on the merits was necessarily tempered by the uncertainty and unpredictability inherent in trial. Also taken into consideration was their belief—supported no doubt by their own experiences with prison reform litigation, as well as by cases and the observations of practitioners and scholars of civil rights law—that prisoners’ civil rights cases premised upon the establishment of the deliberate indifference of governmental actors to unconstitutional conditions of confinement are difficult to win as a general matter.6 Moreover, “no matter how confident one may be in the outcome of litigation, such confidence is often misplaced.’” Mills Corp., 265 F.R.D. at 256. Thus, even absent any specifically identified or anticipated proof problems or compelling defenses at trial from the Plaintiffs’ perspective, a settlement offering the prospect of substantial affirmative relief was clearly an attractive proposition. Conversely, the Defendants were confronted with the prospect of a bench trial on the heels of the Court’s rejection of their potentially case-dispositive defenses as a matter of law and the Court’s pronouncement that it, as the fact-finder, could reasonably find that the VDOC was deliberately indifferent to the Plaintiffs’ serious medical needs in violation of the Eighth Amendment. Accordingly, both Parties faced uncertainty and “‘[w]hen viewed against the substantial and certain benefits that a settlement would provide, these considerations support approval of the proposed . . . settlement.’” Id. (citing In re Global Crossing Securities and ERISA Litig., 225 F.R.D. 436, 459 (S.D.N.Y. 2004)
C. Potential expense and delay caused by continued litigation

6

See, e.g., Barnard v. Piedmont Reg. Jail Auth., No. 3:07CV566, 2009 WL 3416228, *4 &

n.4 (E.D. Va. 2009) (noting “the undesirability of prisoner litigation in general”); Qandah v.

Lombardi, No. 12-04213-CV-C-HFS, 2013 WL 684189, at *2 (W.D. Mo. Feb. 25, 2013)

(reviewing “negative attitudes” and “special skepticism” sometimes held about prisoner

litigation); dkt. no. 228, Exhs. 7-9 (Declarations of Victor Glasberg, David Fathi and Benjamin

Spencer, respectively, supporting Plaintiffs’ Petition for Attorneys’ Fees and Litigation Costs

and attesting to the generally difficult and undesirable nature of prisoners’ civil rights cases).

24
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The time, expense, and effort to obtain a judgment on the merits—both after trial and after the appellate process—did provide incentive for settlement. The parties’ agreement-inprinciple to settle this case was reached on the eve of what was scheduled to be at least a twoweek trial. The additional expenses that both sides would have necessarily incurred in trying the case, on top of the large sums that had already been incurred before trial, would have been substantial. In addition, the trial itself would have almost certainly been followed by extensive post-trial proceedings and a likely Fourth Circuit appeal by whichever side received an adverse judgment from this Court. The avoidance of the demands of further litigation—time, effort, and expense—to the parties weighs strongly in favor of approving the settlement agreement. See Mills Corp., 265 F.R.D. at 256-57.7
D. Solvency of Defendants and likelihood of recovery Because this case involves injunctive relief against a state agency and not a claim for damages, this factor is not implicated. E. Degree of opposition to the settlement The fact that relatively few class members filed objections supports a settlement’s adequacy. Domonoske, 790 F. Supp. 2d at 474 (objections from only 0.04% of class members supported finding of adequacy); Smith v. Res-Care, Inc., No. CV 3:13-5211, 2015 WL 6479658, at *7 (S.D.W. Va. Oct. 27, 2015) (holding that lack of objections weighed in favor of approval); Mills Corp., 265 F.R.D. at 257 (same). Here, only six of the approximately 1,200 class members (or 0.5%) filed objections to or statements regarding the settlement. This factor supports approval of the settlement. The Court discusses the substance of the objections below, which it

7

Taking the second and third adequacy factors together, it is clear that Plaintiffs

understandably abided by the aphorism that “a bird in the hand is worth two in the bush.” By

settling the case on the eve of trial, they forewent the opportunity for some marginally-increased,

costly, and uncertain relief in exchange for a substantial, guaranteed, and immediate quarry.

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finds do not counsel against approval of the settlement. III. The Class Received Reasonable Notice of the Settlement
The Court’s Order granting preliminary approval (dkt. no. 222) contained specific notice provisions to the class members. Notice is not mandatory in class actions certified pursuant to Rule 23(b)(2)—see Fed. R. Civ. P. 23(c)(2)(A)—but the Court agreed with the parties’ determination that the provision of such notice was appropriate under the circumstances of this case. See Dkt. 222, ¶ 2(a)-(d) at 3. The notice procedures were reasonable, and Defendants filed a notice and accompany affidavit recounting their compliance with them (dkt. nos. 224, 224-1), a fact borne out by the Court’s receipt of objections from class members. The Court concludes that the Class Notice provided in this case was comprehensive and fully appropriate to meet the requirements of Rule 23(c)(2)(B), Rule 23(h)(1), and any relevant due process considerations. See Domonoske, 790 F. Supp. 2d at 472-73; Clark, 2004 WL 256433, at *4 n.22 IV. Objections Do Not Undermine the Settlement, and Most Actually Support It
The Court received six comments or objections to the settlement, all of which have been considered. (Dkt. nos. 231, 234, 237, 245, 246, 250). Far from undermining the settlement, these filings overwhelmingly affirm the need for the relief that the settlement provides. The objections of Ms. Durham and Ms. Warner recount the trying conditions they have experienced at FCCW, conditions that the settlement is designed to remedy. The three comments filed after the fairness hearing notifying the Court of the death of Ms. Ines further highlight the importance of this settlement.
Only Ms. Roe has submitted detailed objections to terms of the settlement. She objects, for example, that:
 “Medical staff” is undefined and allows for unqualified or untrained personnel to continue giving treatment (dkt. no. 234 ¶ 35);
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 “timely” treatment and evaluation of medical needs is undefined, and should be clarified to mean within 24 hours (id. ¶ 35a; see also id. ¶ 43 (“timely” emergency case should be defined as 12 hours or less));
 Additional provisions requiring documentation of medical events should be added (id. ¶¶ 36-38);
 Rather than being suspended only 6 months, co-pays should be suspended 9 months (id. ¶ 38);
 MRSA and Hepatitis treatment guidelines should be adopted (id. ¶ 39);
 The Pill Line should not occur outside during bad weather or before 5:30 A.M. (id. ¶ 40);
 Chronic care patients should be monitored every month rather than every 6 months when stable (id. ¶ 41);
 Referrals to specialists should occur within 14 days, not 30 days (id. ¶ 45);
 “Timely” receipt of written lab or testing results should be defined as within 72 hours (id. ¶46);
 Reports on the grievance process should be issued every 3 months (id. ¶47). Many of these objections are simple disagreements with terms that were negotiated over several months with the input of the parties, their lawyers, medical experts, and Dr. Scharff, the compliance monitor. The Court will not lightly second-guess these choices, which are wellinformed by medical judgment and clearly the result of arms-length negotiations.
Furthermore, several of Ms. Roe’s concerns are allayed by the complete terms of the settlement. For instance: there are detailed provisions providing for a compliance monitor who visits FCCW four times a year and submits a corresponding compliance report (dkt. no. 221-1 at ECF 17-24); RNs and LPNs must only act within the scope of their medical training (id. at ECF 9; see also id. at ECF 34, 38); there will never be a co-pay for medicine for chronic conditions, emergency care, or treatment of communicable disease (id. at ECF 10); specific policy changes are implemented regarding diabetes and Hepatitis patients, among other conditions (id. at ECF
27
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8); and any changes to FCCW’s Operating Procedures must be accompanied by 20 days advanced notice (id. at ECF 7 n.2).
Finally, as shown in the Findings of Fact, the Court extensively questioned the Dr. Scharff about Ms. Roe’s objections. Dr. Scharff discussed each of them, and the Court concludes that his answers and explanations fully assuage any concerns about approval of the settlement that class members could maintain. V. The Requirements of the PLRA Are Satisfied
The Settlement Agreement must also be evaluated under the specific requirements of the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626(a)(1)(A), as it concerns prospective relief from prisoners’ conditions of confinement. In particular:
The PLRA states that no prospective relief shall issue with respect to prison conditions unless it is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is the least intrusive means necessary to correct the violation. When determining whether these requirements are met, courts must “give substantial weight to any adverse impact on public safety or the operation of the criminal justice system.” Brown v. Plata, __ U.S. __, 131 S. Ct. 1910, 1939 (2011), citing 18 U.S.C. § 3626(a); accord Plyler v. Moore, 100 F.3d 365, 369 (4th Cir. 1996); Etters v. Young, No. 5:09-CT-3187-D, 2012 WL 1950415, *2 (E.D.N.C. May 30, 2012); Couch v. Jabe, 737 F. Supp. 2d 561, 573 (W.D. Va. 2010). A court “shall not enter or approve a consent decree unless it complies with the limitations on relief set forth in” 18 U.S.C. § 3626(c)(1). Etters, 2012 WL 1950415, at *2. Here, the Parties’ Settlement Agreement expressly reflects their shared consensus that the resolution they have reached satisfies the requirements of the PLRA. See dkt. no. 221 at 14; see also dkt. no. 221-1 at 27 (“The Parties agree that the prospective relief established by this Settlement Agreement is narrowly drawn, extends no further than is necessary to address and remedy the violations of federal rights alleged by the Plaintiffs in their pleadings in this action, is
28
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the least intrusive means necessary to correct these alleged violations and will not have any adverse impact on public safety or the operation of the criminal justice system.”). The Parties have requested that the Court, upon its own independent review and evaluation of the Settlement Agreement, reach a conclusion in accordance with their Stipulation. Id. For the reasons set forth below, the Court so concludes.
Plaintiffs’ original and amended pleadings in this action are premised upon allegations of constitutionally-deficient medical care of a systemic nature at FCCW, as manifested in a host of particular aspects such as, without limitation: inadequate staffing levels; deficient intake screening of offenders upon arrival at FCCW; deficient performance of comprehensive health assessments; inadequate sick call process and inappropriate denial of access to medical services; excessive offender co-pay policy enforcement; insufficient diagnostic and treatment practices; inadequate responsiveness to medical emergencies; deficient and unsanitary infirmary conditions; inadequate chronic care practices; inadequate infectious disease control practices; deficient practices with respect to timely referral to outside medical specialists; deficient practices with respect to timely and appropriate adherence to outside specialists’ treatment recommendations; refusal to provide prescribed non-formulary medications; inadequate and inconsistent continuity in supply and distribution of prescribed (and in some instances, lifesustaining) medications; inadequate and inconsistent continuity in supply and distribution of medical equipment and supplies; unresponsive medical grievance process; denial of appropriate and timely offender access to medical information including diagnostic testing results; denial of prescribed and needed physical therapy; inadequate (or non-existent) accommodations for prisoners with disabilities; insufficient training of correctional staff with respect to medical care matters; deficient policies and/or practices with respect to treatment of chronic pain, provision of
29
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palliative care and release of terminally-ill prisoners; inadequate mortality reviews; inadequate monitoring by VDOC of its medical contractors; and deficient policies and practices for fostering continuous quality improvement in the provision of medical care at FCCW. The Plaintiffs, throughout the course of the litigation, have supported these allegations with substantial admissible and persuasive evidence. See supra; see also dkt. nos. 132 & 138.
The Court earlier concluded that “[t]he Plaintiffs have presented ample evidence in their filings supporting class certification, their Motion for Partial Summary Judgment, and their response in opposition to the VDOC’s Motion for Summary Judgment, enabling a fact-finder [i.e., the Court] to reasonably conclude that the VDOC Defendants are or have been deliberately indifferent to the serious medical needs of the Plaintiff class[.]” Dkt. no. 222, ¶ 4 at 2. Although the case did not proceed to trial and was never fully decided on the merits, the voluminous evidence supplied by the Plaintiffs over four years of litigation would have been sufficient to prove an actual violation of Plaintiffs’ Eighth Amendment rights. Further, the various remedies in the Parties’ Settlement Agreement are directly linked to and designed to effectively address— and redress—the Eighth Amendment violations alleged in the Plaintiffs’ pleadings and reflected in their evidentiary submissions.
A. Changes to VDOC Operating Procedures for FCCW The Parties, with the assistance of correctional medical experts of their choosing and, at times, the designated compliance monitor, comprehensively reviewed the existing VDOC Operating Procedures governing or closely related to the provision of medical care at FCCW. They agreed upon extensive revisions to the FCCW Operating Procedures in order to enhance the prospects for improved medical care that will meet standards for constitutional adequacy.
30
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B. Adoption of Additional Guidelines and Standards Beyond the revisions to the established VDOC Operating Procedures, the parties negotiated and reached agreement regarding an additional set of medical Guidelines and Standards to address specific issues and problem areas revealed by the Plaintiffs’ evidentiary submissions. Adherence to these Guidelines and Standards is deemed necessary to assure that constitutional standards are met at FCCW going forward with respect to such matters as staffing levels, the medical intake process, comprehensive health assessments, the sick call process, the co-pay policy, diagnosis and treatment practices, responses to medical emergencies, infirmary conditions, chronic care practices, infectious disease control, utilization management, medication administration, physical therapy, response to medical grievances, provision of diagnostic testing and course of treatment information, correctional staff training, care for and release of terminally-ill prisoners and mortality review practices. C. Establishment of Other Necessary Policies The Settlement Agreement provides that the Parties will collaboratively develop two new Operating Procedures with the assistance of their respective consulting correctional medical experts and the compliance monitor. These Operating Procedures will ensure that: (i) FCCW meets its obligations to disabled prisoners under both Eighth Amendment standards and the requirements of the Americans With Disabilities Act, 42 U.S.C. §§ 13131, et. seq., and its implementing regulations; and (ii) that the improved, enhanced level of medical care that the Defendants have committed to provide under the Agreement (thereby meeting their constitutional obligations) will continue beyond the expiration of the Agreement as a result of implementation of recognized and accepted Continuous Quality Improvement principles.
31
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D. Performance Monitoring Tools and Monitoring The Parties have agreed that the compliance monitor, Dr. Scharff, will develop a set of Performance Measuring Tools focused on each of the major subjects and issues in regard to which the Defendants’ performance must be improved in order to satisfy constitutional requirements. Dr. Scharff will utilize these Tools as the basis for his monitoring activities to ensure that Defendants are meeting their obligations to provide constitutionally-adequate medical care at FCCW for the duration of the effective period of the Settlement Agreement. For these purposes, Dr. Scharff will conduct periodic visits to FCCW. During these visits, he will interview prisoners, medical staff and correctional personnel; review facilities; review medical grievances and medical records; and undertake such other activities as he deems necessary or appropriate to assess the quality and quantity of medical care that is being provided at the Facility. He will report in writing to the Parties following each visit, and will advise the Defendants in the event he determines that they are not in compliance with constitutional standards and/or the provisions of the Settlement Agreement. In Brown v. Plata, the Supreme Court addressed and elaborated upon the “narrow tailoring” requirement imposed by the PLRA as follows: Narrow tailoring requires a “‘fit’ between the remedy’s ends and the means chosen to accomplish those ends.” Board of Trustees of State Univ. of N.Y. v. Fox, 482 U.S. 469, 480 (1989). The scope of the remedy must be proportional to the scope of the violation, and the Order must extend no further than is necessary to remedy the violation. This Court has rejected remedial orders that unnecessarily reach out to improve prison conditions other than those that violate the Constitution. Lewis v. Casey, 518 U.S. 343, 357 (1996). But the precedents do not suggest that a narrow and otherwise proper remedy for a constitutional violation is invalid simply because it will have collateral effects. 131 S. Ct. at 1939-40 (parallel citations and internal quotations omitted); see also Fox, 482 U.S. at 480 (Narrow tailoring requires “a ‘fit’ that is not necessarily perfect, but reasonable; that
32
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represents not necessarily the single best disposition, but one whose scope is ‘in proportion to the interest served[.]’” (citation omitted.)).
Here, Plaintiffs have alleged, and their voluminous evidentiary presentation supports, systemic violations of the Eighth Amendment in the provision of medical care to prisoners residing at FCCW, as reflected in a host of deficient policies, practices and procedures employed by Defendants and their medical care contractors. The provisions of the Settlement Agreement are specifically geared to modification of the Defendants’ constitutionally-deficient medical care with the objective of raising the level of the overall quality and quantity of medical care at FCCW to meet the constitutional standards under the Eighth Amendment on a consistent, ongoing basis. The Court concludes that the “fit” between the objective of constitutionallyadequate medical care at FCCW and the means chosen by the Parties to meet that objective as embodied in their Settlement Agreement is both reasonable and appropriate under all the circumstances of this case. Accordingly, the Court holds that the prospective relief contemplated by the provisions of the Settlement Agreement is narrowly drawn and extends no further than necessary to correct the violations of federal rights alleged by Plaintiffs and supported by the evidence they have submitted.
The Court also notes that the Settlement Agreement places responsibility for improving the medical care at FCCW squarely within Defendants’ control. Defendants are charged with the obligation to embrace and implement all of the various remedial measures in the Agreement, pursuant to which the medical care at FCCW will be raised to a level satisfying the Eighth Amendment. The Agreement does not invest the compliance monitor with coercive powers over Defendants. Rather, he will merely observe and evaluate their performance of the obligations it imposes, work collaboratively with them on the development of additional policies intended to
33
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enhance the quality of that performance, and advise them in the event acts or omissions implicating constitutional concerns are observed. This structure affords Defendants an opportunity to choose their own means to effectively address the problems identified. The Court’s intervention may be invoked only to the extent Defendants fail or refuse to effectively remedy a constitutional deficiency brought to their attention by Plaintiffs or the compliance monitor under the terms of the Agreement. Accordingly, given the breadth of the constitutional violations that Plaintiffs have alleged and for which they have provided substantial evidence, as well as the scope of the need for significant remedial measures to be undertaken, the Court concludes that the Settlement Agreement constitutes the least intrusive means necessary to correct the violations at issue.
E. Attorneys’ Fees On October 19, 2015, Plaintiffs, as the “prevailing parties” in this litigation, filed a Petition for Award of Attorneys’ Fees and Litigation Costs Pursuant to 42 U.S.C. § 1988, accompanied by a supporting Memorandum of Law and extensive evidentiary submissions, seeking recovery in the total amount of $2,121,972.95. (Dkt. nos. 226-229). Of this total amount, $2,063,298.82 was sought for attorneys’ fees, determined on the basis of a lodestar calculation multiplying the hours that Plaintiffs’ attorneys contend that they reasonably expended in litigating this matter times $211.50, the capped hourly rate imposed upon cases of this nature by the PLRA, pursuant to 42 U.S.C. § 1997e(d)(3). Defendants requested a stay of briefing on the motion while the parties finalized a resolution of the matter, and the Court granted the stay. (Dkt. 249). As a result of successful negotiations, an agreement has been reached (and subjected to the requisite authorization of State officials contemplated by Va. Code § 2.2-514) to resolve the Plaintiffs’ attorneys’ fees and costs by a payment in the amount of $1,500,000.00.
34
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The Court finds and concludes that the fee award agreed upon by the parties as an

element of their Settlement Agreement satisfies all of the requirements of the PLRA, as

mandated by applicable law. See, e.g., Alexander S. v. Boyd, 113 F.3d 1373, 1380 (4th Cir.

1997); Duvall v. O’Malley, Civ. Action No. ELH-94-2541, 2014 WL 1379787, at *8 (D. Md.

April 7, 2014). First, as noted above, the negotiated resolution amount of $1.5 million was based

on a fee demand that was calculated utilizing an hourly rate of $211.50 as contemplated by

42 U.S.C. § 1997e(d)(3). See generally Memorandum of Law in Support of Plaintiffs’ Petition

for Award of Attorneys’ Fees at 11-15 & nn. 4-7 (citing authorities) (Dkt. no. 227). Second,

based upon the evidentiary submissions provided to the Court by Plaintiffs in support of their

Petition, including the sworn Declarations provided by counsel, counsel’s contemporaneous time

records and related documentation, as well as this Court’s own observations and intimate

familiarity with this litigation since its inception, the fees that will be reimbursed under the

Settlement Agreement were directly and reasonably incurred in the course of Plaintiffs’ efforts to

establish the constitutional violations alleged in their pleadings as contemplated by 42 U.S.C.

§ 1997e(d)(1)(A). Furthermore, given the extent of the affirmative relief that must be undertaken

and implemented by Defendants under the provisions of the Settlement Agreement in order to

raise the quality and quantity of medical care at FCCW to a level satisfying Eighth Amendment

standards, the Court has no difficulty concluding that the comprised fee award is proportionate to

the results obtained by Plaintiffs’ attorneys in this action as contemplated by 42 U.S.C.

§ 1997e(d)(1)(B). The Court thus concludes that the award of fees and costs mutually agreed

upon by the parties fully complies with and satisfies the applicable requirements of the PLRA.

*

*

*

35
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Finally, this Court is unable to identify any way in which the implementation of the Settlement Agreement could have any possible adverse impact on public safety or the operation of the criminal justice system. All requirements for approval of the Settlement Agreement under the provisions of the PLRA are thus satisfied.
CONCLUSION The Court having concluded that the Parties’ Settlement Agreement is fair, adequate and reasonable to the Class as a whole and that its terms are narrowly drawn, extend no further than necessary to correct the violations of federal rights alleged by the Plaintiffs, and constitute the least intrusive means necessary to correct those violations, the Settlement Agreement will be approved. Furthermore, the Court finds that the requirements of the PLRA are satisfied as to Plaintiffs’ fee petition, and that Defendants will be ordered to pay $1,500,000 in attorneys’ fees and costs. An appropriate final judgment order will issue. The Clerk of the Court is directed to send these findings of fact and conclusions of law to all counsel of record. Entered this _5_t_h___ day of February, 2016.
36
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, et al.,

)

)

Plaintiffs, )

)

v.

)

)

HAROLD W. CLARKE, et al., )

)

Defendants. )

)

Case No. 3:12-cv-00036-NKM Sr. Judge Norman K. Moon

PLAINTIFFS’ CONSENT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

Plaintiffs Cynthia Scott, et al., subject to the express consent of Defendants Harold W.

Clarke, A. David Robinson, Frederick Schilling and Tammy Brown, all in their official

capacities as representatives of the Virginia Department of Corrections (“the VDOC

Defendants”), seek preliminary approval under Rule 23(e), Fed. R. Civ. P., of a class settlement

for all women who currently reside or will in the future reside at FCCW and who have sought,

are currently seeking or will seek adequate, appropriate medical care for serious medical needs,

as contemplated by the Eighth Amendment to the Constitution. The Plaintiffs and VDOC

Defendants have reached a Settlement Agreement which the parties believe is fair and just and

adequately resolves the Plaintiffs’ claims. The Plaintiffs and Class Counsel ask that this Court

grant preliminary approval of the Settlement, and order that the Class Notice attached as

Exhibit 2 to the Memorandum supporting this Motion be provided to the Class Members,

notifying them of the proposed terms of the Settlement, their rights under Rule 23(e) and the date

and time of the Fairness Hearing.

Case 3:12-cv-00036-NKM Document 220 Filed 09/15/15 Page 1 of 4 Pageid#: 4060

Plaintiffs have filed today a Memorandum of Law and proposed Order in support of this

Motion; for the reasons set forth therein, they request that the Motion be granted.

DATED: September 15, 2015

Respectfully submitted,

Mary C. Bauer, VSB No. 31388 (mary@justice4all.org) Abigail Turner, VSB No. 74437 (abigail@justice4all.org) Brenda E. Castañeda, VSB No. 72809 (brenda@justice4all.org) Angela Ciolfi, VSB No. 65337 (angela@justice4all.org) Erin M. Trodden, VSB No. 71515 (erin@justice4all.org) Ivy A. Finkenstadt, VSB No. 84743 (ivy@justice4all.org) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 (434) 977-0553

and

Theodore A. Howard (admitted pro hac vice) (thoward@wileyrein.com) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000

and

2 Case 3:12-cv-00036-NKM Document 220 Filed 09/15/15 Page 2 of 4 Pageid#: 4061

Deborah M. Golden (admitted pro hac vice) (Deborah_Golden@washlaw.org) Elliot Mincberg D.C. PRISONERS’ PROJECT OF THE WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000 By: /s/ Brenda E. Castañeda
Brenda E. Castañeda Attorneys for Plaintiffs
3 Case 3:12-cv-00036-NKM Document 220 Filed 09/15/15 Page 3 of 4 Pageid#: 4062

CERTIFICATE OF SERVICE I hereby certify that on this 15th day of September, 2015, a true and correct copy of the foregoing Plaintiffs’ Consent Motion for Preliminary Approval of Settlement was served via electronic mail upon the following:
Richard C. Vorhis, Esq. J. Michael Parsons, Esq. OFFICE OF THE ATTORNEY GENERAL Public Safety & Enforcement Division 900 East Main Street Richmond, VA 23219 Attorneys for the Virginia Department of Corrections Defendants
/s/ Brenda E. Castañeda Brenda E. Castañeda
Case 3:12-cv-00036-NKM Document 220 Filed 09/15/15 Page 4 of 4 Pageid#: 4063

 
 EXHIBIT 1
Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 1 of 57 Pageid#: 4085

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, et al.,

)

)

Plaintiffs, )

)

v.

)

)

HAROLD W. CLARKE, et al., )

)

Defendants. )

)

Case No. 3:12-cv-00036-NKM Sr. Judge Norman K. Moon

SETTLEMENT AGREEMENT Plaintiffs Cynthia B. Scott, Belinda Gray, Toni Hartlove, Karen Powell and Lucretia Robinson,1 for themselves individually and as representatives of a class of additional unnamed

plaintiffs similarly situated (“the Plaintiffs”), and defendants Harold W. Clarke, A. David

Robinson, Frederick Schilling and Tammy Brown, each in their official capacities as

representatives of the Virginia Department of Corrections (“the VDOC Defendants”), for their

Settlement Agreement in resolution of the above-captioned lawsuit, hereby jointly state as

follows:

I. INTRODUCTION

1. The Plaintiffs initiated this class-action lawsuit on July 24, 2012, pursuant to the

Eighth Amendment to the Constitution of the United States and 42 U.S.C. § 1983, seeking

declaratory and injunctive relief with respect to alleged constitutionally-deficient medical care

1

Original Named-Plaintiff Bobinette D. Fearce requested voluntary dismissal from this case, without

opposition by the Defendants, by Motion filed March 28, 2015. See ECF Docket No. 207. The Motion was granted

by Order dated March 31, 3015. (ECF Dkt. No. 208). Original Named-Plaintiff Marguerite Richardson requested

voluntary dismissal from this case, without opposition by the Defendants, by Motion filed June 17, 2015. (ECF Dkt.

No. 210). The Motion was granted by Order on June 22, 2015. (ECF Dkt. No. 214). On July 24, 2015, the

Plaintiffs filed a Consent Motion for Substitution of New Class Representatives and supporting Memorandum,

requesting that four class members be substituted as new class representatives in place of original Named-Plaintiffs

Ms. Fearce, Ms. Richardson and Ms. Rebecca Scott, who would soon be released from FCCW. See ECF Dkt.

Nos. 215, 216. The Substitution Motion was granted by oral Order entered July 29, 2015 (ECF Dkt. No. 217),

designating Belinda Gray, Toni Hartlove, Karen Powell and Lucretia Robinson as new class representatives.

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afforded to themselves and all other women residing at the Fluvanna Correctional Center for
Women (“FCCW”), which the Plaintiffs contend reflects deliberate indifference on the part of
the VDOC Defendants to the Plaintiffs’ serious medical needs.
2. By Memorandum Opinion and Order dated November 20, 2014, the Court
granted the Plaintiffs’ Motion for Class Certification and certified the class described by the
Plaintiffs’ Motion pursuant to Fed. R. Civ. P. 23(b)(2). (ECF Dkt. No. 188). Thereafter, the
Court entered an Order of Partial Summary Judgment in favor of the Plaintiffs on November 25,
2014, holding, inter alia, that:
a. the Plaintiffs established, as a matter of law, that they fully and properly
exhausted all pre-litigation administrative remedies available to them, as required by applicable provisions of the Prison Litigation Reform Act, 42 U.S.C. § 1997e (see Memorandum Opinion dated November 25, 2014, at 23-33 & nn.8-10 (ECF Dkt. No. 201));
b. the Plaintiffs established, as a matter of law, that individually and as a
class, they suffer from “serious medical needs” as a predicate to a viable cause of action for “deliberate indifference” under the Eighth Amendment (id. at 13-18 & n.7);
c. the Plaintiffs established, as a matter of law, that the VDOC Defendants
have a non-delegable duty under the Eighth Amendment to provide constitutionallyadequate medical care to all prisoners within their custody, including the Plaintiffs (id. at 8-13); and that
d. the VDOC Defendants failed, as a matter of law, to demonstrate on the
basis of material facts as to which there is no genuine issue in dispute, that they could not be found liable for providing insufficient medical care, or failing to provide medical care under circumstances in which such care was due, reflecting “deliberate indifference” to the Plaintiffs’ and the class members’ serious medical needs in violation of the Eighth Amendment (id. at 33-46).
3. The parties have engaged in extensive discovery and have vigorously litigated this
matter in accordance with their respective claims and defenses with regard to the issues
presented by the Plaintiffs’ original and amended Complaints.
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4. The VDOC has denied liability for the Eighth Amendment violations alleged by the Plaintiffs in their original and amended Complaints filed in this action.
5. The parties, upon due consideration, determined that it was in their respective, as well as their mutual, best interests to resolve their differences and to conserve the time, effort expense and resources of the parties and the Court that would be consumed by continuing to litigate this matter.
6. Accordingly, the parties, by and through their respective counsel of record, entered into a Memorandum of Understanding (“MOU”), effective as of November 25, 2014, setting forth mutually agreed-upon terms and conditions for the settlement of this action upon the completion of the parties’ collaborative effort to identify, adopt and implement operative standards for the provision of constitutionally-adequate medical care at FCCW going forward, subject to the oversight of a party-designated Compliance Monitor and this Court’s continuing supervisory jurisdiction.
7. The duties and responsibilities imposed upon the parties by Sections 1 and 2 of the MOU having now been substantially performed to the parties’ mutual satisfaction, they now present their Settlement Agreement, as set forth below, for the Court’s review and approval pursuant to Fed. R. Civ. P. 23(e). This Settlement Agreement applies to FCCW.
II. DEFINITIONS 1. “Settlement Agreement” shall mean this document and all of the terms and conditions set forth herein as submitted to the Court for approval. 2. “Plaintiffs” shall mean the named Plaintiffs and class representatives Cynthia B. Scott, Belinda Gray, Toni Hartlove, Karen Powell and Lucretia Robinson.
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3. The “Class” shall mean the class certified by the Court pursuant to Fed. R. Civ. P. 23(b)(2) in its Memorandum Opinion and Order entered November 20, 2014, consisting of “all women who currently reside or will in the future reside at FCCW and who have sought, are currently seeking or will seek adequate, appropriate medical care for serious medical needs, as contemplated by the Eighth Amendment to the Constitution[.]”
4. “FCCW” shall mean the Fluvanna Correctional Center for Women, located in Troy, VA.
5. “Defendant” for purposes of this Settlement Agreement shall mean the Virginia Department of Corrections, acting by and through its duly-authorized employees performing in their official capacities, including but not limited to the individual named defendants Harold W. Clarke, A. David Robinson, Frederick Schilling and Tammy Brown, and their respective successors, agents and assigns.
6. “Parties” shall mean, collectively, the Plaintiffs and the Defendant as defined hereinabove.
7. “Effective Date” shall mean the date on which the Court enters a Consent Order of Judgment granting final approval to this Settlement Agreement.
8. “Contractor” shall mean Armor Correctional Healthcare, Inc. or any other entity with which the Defendant may choose to enter into a contractual agreement pursuant to which that entity assumes the obligation to provide medical and/or mental health services to prisoners residing at FCCW in exchange for monetary compensation.
9. “Compliance Monitor” shall mean the individual person jointly designated by the Parties or selected by the Court who shall periodically review, evaluate and report to the Parties concerning the Defendant’s performance of its obligation to provide constitutionally-
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adequate medical care to the members of the Class in accordance with the provisions of this Settlement Agreement, and the requirements of the Eighth Amendment.
10. “Facility” shall mean the Fluvanna Correctional Center for Women. III. SUBSTANTIVE PROVISIONS
1. Statement Of Purpose In order to insure that the quality and quantity of medical care to be provided by the Defendant to prisoners residing at FCCW as of and following the Effective Date of this Settlement Agreement shall meet or exceed constitutional requirements under the Eighth Amendment, the Defendant shall be obligated to achieve and maintain compliance with the Operating Procedures, Guidelines and Standards governing the provision of medical care that are set forth in this Section below or incorporated in this Section by reference. The provisions included in this Section, expressly or as incorporated by reference, are intended to insure that prisoners incarcerated at FCCW receive adequate, appropriate and timely medical care to protect them from substantial existing, ongoing and/or imminent physical injury, illness, chronic pain and undue risk of worsening health or premature death. 2. Governing Practices And Procedures
a. VDOC Operating Procedures In accordance with the provisions of Section 2 of the Parties’ MOU, the Plaintiffs and the Defendant each named a correctional medical care expert/consultant of their own choosing to conduct a comprehensive review of all of the VDOC’s existing Operating Procedures (“OPs”) governing or having a bearing on the Defendant’s and its Contractor’s provision of medical care to prisoners incarcerated at FCCW. On the basis of that review, modifications to the language of specific provisions in certain of the OPs were proposed by the Parties’ experts/consultants in order to enhance the likelihood that medical care afforded to prisoners in a manner adhering to
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these revised OPs will meet constitutional requirements. Following negotiations, the Defendant has accepted, adopted and will implement certain of the recommended modifications to its OPs at FCCW.2 The VDOC OPs applicable at FCCW are incorporated herein by reference, and adherence to the OPs by the Defendant and its Contractor in providing medical care to the Plaintiff Class as of and following the Effective Date shall be evaluated by the Compliance Monitor in assessing the Defendant’s fulfillment of its obligations to provide medical care meeting constitutional requirements under the terms of this Settlement Agreement and the Eighth Amendment.
b. Additional Guidelines And Standards In addition to the OPs, including but not limited to those modified pursuant to the Memorandum of Understanding process described above, the Defendant’s obligation to provide constitutionally-adequate medical care at FCCW pursuant to the terms of this Settlement Agreement and the requirements of the Eighth Amendment shall be carried out in accordance with the Guidelines and Standards set forth below. During the time period that this Settlement Agreement is in effect, the Defendant’s performance of these obligations shall be evaluated on an ongoing basis by the Compliance Monitor in accordance with the procedures described in Section IV. of this Agreement below.

2

A list of the OPs that were modified pursuant to the provisions of Section 2 of the Parties’ MOU and a

summary of the revisions thereto is attached hereto as Appendix A. In the event the Defendant seeks to affect any

further changes to its OPs governing or relating to the provision of medical care at FCCW during the pendency of

this Settlement Agreement, it shall provide notice of the proposed changes to the Plaintiffs and the Compliance

Monitor at least 20 days before such changes are scheduled to take effect. In the event the Plaintiffs object to the

proposed changes on the grounds that the provision of medical care in accordance with the changed OP would result

in an Eighth Amendment violation, the Plaintiffs may seek a ruling from the Court precluding adoption of the

proposed changes pursuant to the dispute resolution procedures set forth in Section V.2. of this Agreement below.

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Guidelines for FCCW
i. VDOC Clinical Practice, Medical and Nursing Guidelines
 The Defendant shall refer to and follow generally accepted national clinical guidelines for chronic disease, as they evolve, including the current guidelines for the treatment of diabetes and hypertension, respectively.
 VDOC’s 2015 clinical guideline for Hepatitis B shall include, in Section XII thereof, pregnancy as an indication for treatment, as untreated Hepatitis B infection poses a serious risk of harm to a fetus. Under Section XVI, the discontinuation of treatment for risky rule violations shall be considered by physicians on a case-by-case basis, taking into account the public health risk posed by such discontinuation in any specific case.
 VDOC’s updated clinical guideline for Hepatitis C shall be reviewed for further updating on an annual basis. This guideline shall be revised to expressly provide for continuity of treatment for newly-incarcerated prisoners who were receiving treatment in the community. “Control” of comorbid conditions, such as diabetes, shall be defined, and the level of control for diabetes shall be A1c hemoglobin level ≤9.0. Treatment shall be afforded to any prisoner with a remaining sentence of nine months or more at the time the need for treatment is identified, and a prisoner need not have been incarcerated for three years before she is eligible for treatment. Under Section X1.4, .5 and .6, the discontinuation of treatment for risky rule violations shall be considered by physicians on a case-bycase basis, taking into account the public health risk posed by such discontinuation in any specific case.
 The Defendant shall refer to the Federal Bureau of Prisons (BOP) clinical guideline and other generally accepted national guidelines for treatment of skin and soft-tissue infections.
 In regard to the VDOC Medical and Nursing Guidelines, the guideline governing AIMs (abnormal involuntary movements) testing of prisoners on antipsychotic medications shall be modified to provide that an AIMs test should be performed as a baseline for any prisoner with a prescription for any first-generation or second-generation
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antipsychotic medication, and the test should be repeated every six months, at a minimum.
 The guideline regarding treatment of Urinary Tract Infections shall be modified to provide for a physician visit within 72 hours of diagnosis absent an indication of a need for greater urgency.
 Handcuffs applied in the front of the offender are the only restraints authorized when transporting an offender who is pregnant or in post-partum recovery outside the secure perimeter. Female offenders in their second and third trimesters of pregnancy shall be transported by wheelchair or gurney instead of walking in order to prevent accidental falls posing a risk of harm to the fetus. Restraint by handcuffs of offenders during active labor and delivery, or at any other time when the Health Services Administrator determines that the use of handcuffs might jeopardize the health or wellbeing of the pregnant woman or fetus is not permitted. Medical profiles for use of bottom bunks shall be granted to pregnant offenders and other offenders whose physical disabilities or illnesses make climbing to an upper bunk infeasible as a practical matter.
Standards for FCCW
i. Provider staffing levels.
Standard: FCCW shall establish and maintain a sufficient number of health staff of varying types or adopt such other measures as shall be necessary to provide inmates with adequate and timely evaluation and treatment, including continuity and coordination of care. Nurse practice shall be performed within the scope of nursing licenses, and neither registered nurses (RNs) nor licensed practical nurses (LPNs) shall make medical decisions beyond the scope of their professional training. Nursing coverage shall be provided around the clock.
ii. Intake screening of offenders.
Standard: Receiving screening shall be performed on all inmates upon arrival at the intake facility as soon as possible to ensure that emergent and urgent health needs are met and to protect staff and prisoners from unnecessary exposure to communicable disease.
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iii. Comprehensive health assessments.
Standard: Comprehensive health assessments shall be performed on intake and thereafter according to revised OP 720.3. Age and gender specific screening and testing shall conform to generally accepted national guidelines. These health assessments should be performed no later than 14 days after intake, or sooner depending on medical appropriateness. Patients on medication for acute or chronic conditions at time of intake shall have continuity of medication.
iv. The Sick Call Process/Access to Health Services.
Standard: Non-emergency requests for care shall be screened for urgency within 24 hours. Physician/mid-level practitioner referrals should be accomplished in no more than 72 hours for urgent problems or deterioration of chronic conditions. FCCW shall assure continuity when requests for examination and/or treatment concern lapses in prescribed medication.
v. Offenders’ Co-Pay Policy.
Standard: FCCW shall suspend all co-payments for medical care for six months commencing as of the Effective Date, after which co-payment requirements will resume in accordance with thenexisting VDOC policy. There will be no co-payments for medications for chronic conditions, emergency care, or treatment of communicable diseases (e.g., MRSA, HIV, HCV). Copayments shall not be charged until the service is performed or until the first dose of ordered medication is provided. Under no circumstances will there be co-payments for wheelchair or stretcher transport for acute or urgent conditions. Co-payment, if any, for medical equipment (e.g., crutches, walkers, canes, etc.) that FCCW provides to prisoners in accordance with its legal obligation to afford reasonable accommodations in regard to disabilities will be determined pursuant to the parties’ development of a comprehensive ADA policy under Section III.2.c. of this Agreement, below. Co-payments will not be charged for providing prisoners with an initial copy of the results of diagnostic or laboratory tests ordered by the practitioners.
vi. Diagnosis and Treatment.
Standard: Prisoners should have unimpeded access to timely medical care at an appropriate level, including, among other things, adequate pain management for acute and chronic conditions.
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vii. Response to Medical Emergencies/Emergency Medical Care.
Standard: Response to medical emergencies should be timely and should conform to appropriate standards of care. Emergency medications, medical supplies and equipment shall be regularly maintained and readily available.
viii. Infirmary Conditions and Operations.
Standard: Infirmary care shall be appropriate to meet the serious medical needs of patients. This includes physical plant accommodations; infectious disease control; sanitation and hygiene; privacy; heat and hot water; functioning medical equipment; and staffing. Each admission should have admission notes, treatment plans, and discharge plans. Infirmary patients should have access to recreation and programming, except as specifically limited by their medical conditions.
ix. Chronic Care.
Standard: Offenders shall have continuity and coordination of care for chronic conditions such as hypertension, diabetes, cancer and other diseases that require periodic care and treatment. They shall be monitored every six months if their condition is controlled and stable. For those whose conditions are not controlled and stable, they shall be monitored every three months, at a minimum.
x. Infectious Disease control and infectious waste management.
Standard: An effective program includes surveillance, prevention, and control of communicable disease. Among other things, this includes expedited access to prophylactic measures for high-risk exposures, such as blood-borne exposures.
xi. Utilization Management.
Standard: The quality of care can be enhanced by effective care management. Quality can be diminished by underuse of appropriate health care services, overuse of services (e.g., unnecessary testing that leads to unnecessary interventions) and misuse of resources. The UM program shall work to enhance quality of care by providing timely access to an appropriate level of care.
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a. Timely Referral to Outside Providers for Specialized Care.
Physician requests for off-site care shall be processed in a timely manner and considered in accordance with nationally-accepted criteria, e.g., InterQual, Milliman, etc. A physician shall make any recommendations or decisions other than approvals. The referring physician shall have an appeal process, and appeals shall be resolved in a timely manner. New referrals should be accomplished within 30 days. The referring physician shall examine the patient monthly while awaiting the referral appointment to ascertain any deterioration in condition.
b. Timely Compliance with Consultant Recommendations/
Consultant recommendations, including those regarding follow-up appointments, shall be acknowledged in the medical record and either followed or amended, with medical record documentation of the rationale for not following consultants’ recommendations.
c. Prescription of Non-Formulary Medications.
The Formulary shall include a procedure to waive Formulary restrictions with respect to otherwise necessary and/or appropriate medications not listed. If a waiver request is denied, the referring physician shall have a right of appeal to the VDOC Medical Director, and appeals shall be resolved in a timely manner.
xii. Continuity in Supply and Distribution of Medication.
Standard: Medication services shall be clinically appropriate and medications shall be provided in a timely, safe, and sufficient manner, including continuity of medication on intake and renewal of prescriptions whenever clinically appropriate. Pharmaceutical operations shall be sufficient to meet the needs of the Facility and conform to legal requirements.
To the extent possible, arrangements shall be made to provide medication indoors during inclement weather. The timing of medication administration shall be considerate of sleep requirements and relationship to the timing of meals, where medically appropriate, e.g., diabetes. Morning pill call shall be conducted no earlier than 5:30 a.m.
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All prescription medications delivered or administered to patients will be labeled according the Virginia Regulations Governing the Practice of Pharmacy.3 This shall include, among other things, patient name, identification number, drug name, instructions, and expiration date. Further, appropriate safeguards should be in place so that medications that should not be crushed are not crushed.
xiii. Continuity in Supply and Distribution of Medical Equipment/Supplies (prostheses, wheelchairs, adult diapers, bandages, etc.).
Standard: Durable medical equipment in appropriate working order and supplies shall be ordered, maintained, provided and available for daily use, as medically necessary.
xiv. Physical Therapy.
Standard: Physical therapy services shall be available on-site or off-site, as appropriate, and, subject to the offender’s consent, shall be carried out as prescribed by the patient’s physician.
xv. The Medical Grievance Process.
Standard: The grievance mechanism is an important component of the Facility quality management program. The grievance process allows a patient to question or complain about health care services. The Facility shall log and track incoming grievances to assure timely responses. The Facility shall be responsive to the complaint in a timely and meaningful manner. The Facility shall perform quantitative and qualitative analysis of grievance data as part of its quality management program. FCCW data shall be analyzed by VDOC as part of its contract oversight function.
xvi. Appropriate Offender Access To Information regarding Medical Care.
Standard: Information on access to health services shall be communicated orally and in writing to prisoners on arrival at the facility, tailored in a form and language that each prisoner can understand. Patients shall be provided with the results of laboratory and diagnostic testing and the recommendations of consulting practitioners in a comprehensible form and timely manner.

3

https://www.dhp.virginia.gov/pharmacy/pharmacy_laws_regs.htm, accessed 15 December 2014.

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Diagnostic reports or patient instructions from consulting physicians shall be provided to an offender upon request at no charge for the first copy.
xvii. Appropriate Accommodations for Prisoners with Special Needs.
Standard: Prisoners are essentially dependent on the physical conditions of and services provided by their facilities. The Facility shall make reasonable accommodations for physically challenged and mentally ill prisoners, consistent with and as required by the law. This shall include, among other things, medical and mental health care and physical plant accommodations; medication; protection from heat injury; skilled nursing care and programming. Health and custody staff shall avoid disciplining prisoners for their disabilities and provide personal safety protection for those with disabilities, especially the elderly. Among other things, this includes access to medical services in Building 2 and wheelchair access in dining halls. In addition, patients shall be provided toilet access, consistent with their medical needs as determined by a practitioner.
xviii. Guidance/Training of Correctional Staff.
Standard: Health care staff shall work with Facility administration to provide training and guidance to custody staff on first aid to the extent needed; recognizing the need for emergency care; cardiopulmonary resuscitation; recognizing acute manifestation of chronic illness (e.g., diabetes, asthma, seizures) and adverse effects of medication; suicide prevention; and recognizing signs and symptoms of mental illness.
xix. Care/Release of Terminally-Ill Offenders
Standard: FCCW shall have and maintain a program to provide palliative care, including pain management, where medically appropriate. FCCW shall have a program to address the needs of terminally ill patients, including voluntary hospice programs. The health care staff shall recommend transfer or early release to legal authorities, where medically appropriate.
xx. Conduct Of and Follow-Up Regarding Mortality Reviews.
Standard: Mortality review is an important component of a quality management program. Within 30 days of a death, the Medical Director of the Facility shall complete a review of the care provided to each decedent. This review should be self-critical,
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including explicit consideration as to whether the death was preventable. It should also include a discussion of how the care might have been improved, even if the death was not preventable. The review should include recommendations for improving care for presentation to the VDOC Quality Management Committee. The mortality review at the facility level shall become part of the VDOC statewide mortality review.
The mortality review shall be reopened, as necessary or appropriate, in consideration of an autopsy and toxicology report, when these are released.
xxi. Criteria for Performance Measures, Evaluation, and Comprehensive Quality Improvement.
Standard: FCCW shall measure its performance on each aspect of the obligations imposed by this Settlement Agreement. This measurement shall be quantitative, based on focused or comprehensive medical record review where applicable. Measures shall conform to the circumstances at FCCW and shall be approved by the Compliance Monitor.
In addition, the quality management program shall consider data from mortality reviews, grievance analyses, and any patient satisfaction surveys.
Data shall be analyzed qualitatively so as to identify opportunities for improvement and identify remedies. Performance shall be tracked and trended over time and shared with the Parties through counsel on a quarterly basis while this Settlement Agreement is in effect.
FCCW will develop an annual quality management program plan that takes into consideration known impediments to quality care and opportunities for improvement. On an annual basis, FCCW will produce a self-critical evaluation of the prior year’s clinical performance and an evaluation of the value of the quality management program. This evaluation will be used to develop the annual quality management program plan.
xxii. Performance Evaluation and Quality Improvement, including Contractor Monitoring and Compliance, beyond expiration of the Settlement Agreement.
Standard: VDOC will actively participate in Quality Improvement Committee meetings, as part of clinical oversight and as partners with the Contractor in providing continuous and unimpeded access to an appropriate level of health care at FCCW. Through its
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oversight, VDOC will work to reduce barriers to timely access to care at FCCW, and provide remedies where opportunities for improvement are identified. VDOC will assure that improvements in care at FCCW are supported by sustainable systems of care. The Compliance Monitor will evaluate VDOC’s progress in selfidentification of opportunities for improvement and will evaluate the sustainability of documented improvements in care and clinical outcomes at FCCW. c. Establishment Of Additional Relevant Policies The Parties acknowledge that VDOC does not currently have an OP regarding reasonable accommodations for physical disabilities of incarcerated individuals consistent with the mandate of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and its implementing regulations and standards. Nor does VDOC currently have an OP establishing concrete and definitive practices and procedures to govern the Defendant’s self-evaluation with respect to the quality and quantity of the medical care it provides to prisoners on an ongoing basis in accordance with widely-recognized Continuous Quality Improvement (“CQI”) concepts. The Defendant agrees that the Parties, their respective correctional medical experts/consultants and the Compliance Monitor, acting in mutual good faith and working in concert, shall develop, adopt and implement new VDOC OPs for FCCW concerning Reasonable Accommodation of Disabilities and CQI, respectively, within 120 days of the Effective Date of this Settlement Agreement. In the event a disagreement between the Parties arises with respect to the content of these new OPs, such dispute shall be resolved by the Compliance Monitor.
d. Performance Measuring Tools In evaluating the Defendant’s performance and satisfaction of its obligation to provide the prisoners incarcerated at FCCW with constitutionally-adequate medical care in accordance with the Eighth Amendment and the terms and conditions of this Settlement Agreement, the Compliance Monitor shall utilize and report on the basis of application of the Performance
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Measuring Tools to be developed by the Compliance Monitor with a focus on each of the

subjects identified on the list attached as Appendix B of this Agreement and fully incorporated

herein by reference.

IV. MONITORING

1. Monitor Selection

Pursuant to Section 1 of the Parties’ MOU, the Parties have jointly selected Nicholas

Scharff, M.D., MPH, the former Chief Medical Officer of the Commonwealth of Pennsylvania

Department of Corrections, to serve as the Compliance Monitor for purposes of this Settlement Agreement.4 In the event the Compliance Monitor position becomes vacant before the full

duration of the monitoring period contemplated by this Settlement Agreement has expired, the

Parties, by counsel, shall meet, confer and seek to agree upon another knowledgeable individual

with expertise and experience in the field of correctional medicine to fill the vacancy as promptly

as practicable. If the Parties’ representatives are unable to reach agreement on the selection of an

individual to serve as Dr. Scharff’s successor in the role of Compliance Monitor, each Party shall

nominate one correctional medical expert to the Court, accompanied by a written submission

setting forth its nominee’s qualifications to serve and any arguments either Party may wish to

make concerning the other Party’s nominee, and the Court shall select the Compliance Monitor

from the Parties’ competing nominees, the Court’s determination in this regard to be final.

2. Monitoring Functions

a. Visits To FCCW The Compliance Monitor shall, during the first two years that this Settlement Agreement

is in effect, conduct an in-depth visit on site at FCCW at least four times per year. The duration

of the initial visit shall presumptively be at least 24 hours, to be conducted over the course of 3 to

4

A copy of Dr. Scharff’s current Curriculum Vitae is attached as Appendix C to this Settlement Agreement.

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5 days. The duration of visits thereafter shall be determined in accordance with the Compliance Monitor’s discretion. If the Monitor, in the exercise of his discretion, on the basis of application of the Guidelines, Standards and Performance Measuring Tools set forth or referenced herein, determines that appropriate progress has been demonstrated toward the goal of constitutionallyadequate medical care on a consistent basis by the end of the second year that this Settlement Agreement is in effect, he may reduce the frequency of his visits to FCCW to at least once during each four-month period, for a total of three annual visits in the third year. Otherwise, the number of annual visits in the third year shall be no fewer than the number of annual visits during the second year. If the Monitor, in the exercise of his discretion as described above, determines that appropriate progress has been demonstrated toward the goal of constitutionallyadequate medical care on a consistent basis during the third year that this Settlement Agreement is in effect, he may reduce the frequency of his visits to FCCW to at least once during each sixmonth period, for a total of two annual visits in the fourth year. Otherwise, the number of annual visits in the fourth year shall be no fewer than the number of annual visits during the third year. The Monitor, in his discretion, may determine that it is necessary to visit FCCW more frequently than the minimum number of visits prescribed for any year during the time period that this Settlement Agreement is in effect.
b. Focus/Purpose Of Visits To FCCW The purpose and focus of the Compliance Monitor’s periodic visits to FCCW shall be to observe, evaluate and analyze the nature and extent of all aspects of the Defendant’s performance of its obligation to provide constitutionally-adequate medical care to the Class, as required by the Eighth Amendment and in accordance with the provisions of Section III of this Settlement Agreement.
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c. Monitor Reporting The Compliance Monitor shall prepare a written report to the Parties setting forth his findings after each visit to FCCW. Each report shall be provided to counsel for the Parties in draft form fourteen days before the intended date of its issuance in final form, and the Compliance Monitor shall consider the Parties’ comments and suggestions and make such changes, if any, as he deems appropriate to the draft before issuing the report. The reports shall be written with due regard for the privacy interests of individual prisoners and the Defendant’s interest in protecting against the disclosure of non-public information that may legitimately be regarded as affecting security considerations. For purposes of each report, the Compliance Monitor shall evaluate the status of the Defendant’s performance of its obligations under the Eighth Amendment and this Settlement Agreement, focusing on the Operating Procedures, Guidelines and Standards, and utilizing the Performance Measuring Tools, set forth or incorporated by reference in Section III above. With respect to each element of the Defendant’s performance evaluated, the Compliance Monitor shall rate the Defendant as non-compliant, partially compliant or fully compliant with the obligations contemplated in Section III above. In order to assess compliance, the Monitor shall review a sufficient number of pertinent medical charts and other relevant documents to accurately evaluate current conditions; interview all necessary medical personnel and correctional staff; and interview a sufficient number of prisoners to gain a complete and accurate sense of the status of provision of medical care at the time of each visit. The Compliance Monitor shall be responsible for independently verifying any representations made by the Defendant and/or the Contractor regarding progress towards satisfaction of the obligation to provide constitutionally-adequate medical care in accordance with the provisions of Section III and examining all supporting documentation. Each report shall describe the measures undertaken by the Compliance Monitor
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to analyze conditions and assess compliance, including identification of documents reviewed, individuals interviewed, medical practices and procedures observed and locations investigated, and shall expressly and with specificity set forth the basis for each of the Compliance Monitor’s findings and conclusions.
If the Compliance Monitor, during the time period in which this Settlement Agreement is in effect, identifies a deficiency in any aspect of the medical care provided by the Defendant at FCCW that he deems to involve constitutionally-inadequate care, he shall promptly bring the problem at issue to the Defendant’s attention by written notice. The date of receipt of such notice by the Defendant shall trigger the running of a 30-day time period within which the Defendant may determine and implement a cure of the problem identified, or attempt to otherwise resolve the problem through negotiations with the Compliance Monitor.
If the Plaintiffs, during the time period in which this Settlement Agreement is in effect, identify a deficiency in any aspect of the medical care provided by the Defendant at FCCW that they believe involves constitutionally-inadequate care, they, by and through their counsel and with or without the concurrence of the Compliance Monitor, may bring the problem at issue to the Defendant’s attention by written notice. The date of receipt of such notice by the Defendant shall trigger the running of a 30-day time period within which the Defendant may determine and implement a cure of the problem identified, or attempt to otherwise resolve the problem through negotiations with the Plaintiffs’ counsel. To the extent they deem necessary or appropriate, the Parties may enlist the assistance and input of the Compliance Monitor in attempting to resolve such problems as may be identified.
The Plaintiffs’ opportunity, acting by and through their counsel, to bring issues of allegedly constitutionally-inadequate medical care to the attention of the Defendant directly as
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described in the preceding paragraph shall not constitute a substitute for any individual prisoner’s obligation to comply with the Inmate Grievance Procedure, and Plaintiffs’ counsel shall advise the Plaintiffs accordingly.
Copies of the reports prepared by the Compliance Monitor shall be public records and shall be maintained on file in the Prison Library at FCCW and available for review by the prisoners residing there, such copies to be redacted to the extent necessary to protect against the disclosure of the identity of any particular prisoner discussed therein, the disclosure of any nonpublic information relating to security considerations, or the disclosure of information deemed to be Confidential by the parties as described more fully in Section IV.4. below.
3. Monitor Access Subject to the express understanding that the Compliance Monitor may be escorted by VDOC correctional personnel when visiting within secure areas of FCCW as the Defendant deems necessary or appropriate, the Compliance Monitor shall have liberal and prompt access upon request to all areas within FCCW in which medical care services or accommodations for disabilities are provided; to all medical and security personnel employed at FCCW; to all prisoners residing at FCCW; and to all medical grievance records and medical records maintained by FCCW and/or the Defendant pertaining to prisoners residing at FCCW. All interviews conducted by the Compliance Monitor shall be confidential, even if subject to visual observation by FCCW correctional staff from an appropriate distance. There shall be no retaliation on the part of FCCW correctional staff or other VDOC personnel against any prisoner residing at FCCW on the basis of such prisoner’s active involvement in this lawsuit or her interaction with the Compliance Monitor. The Defendant shall instruct all VDOC and Contractor employees to cooperate fully with the Compliance Monitor. The Defendant shall
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provide documents to the Compliance Monitor upon his request (e.g. census summaries, incident and compliance reports involving medical issues, grievances, etc.) within 7 days of the date of the request. The Compliance Monitor, in his sole discretion, may engage in ex parte communications with any of the Parties, without any obligation to disclose the existence or the substance of any such communications to any other Party either before or after they are conducted.
4. Reporting Of Deaths The Defendant shall, within 24 hours of any such occurrence, notify the Compliance Monitor of the death of any FCCW prisoner and shall, as soon as possible thereafter, forward to the Compliance Monitor, with a copy to the Plaintiffs’ counsel, any Incident Reports or Reports of Sudden and Unusual Incidents concerning the death, whether prepared by VDOC personnel (including investigators employed by the VDOC Special Investigation Unit) or the Contractor’s personnel; all medical records of the deceased prisoner; any medical and/or mental health reports regarding or relating to the death or the deceased prisoner; as well as any and all final reports prepared by or on behalf of the VDOC concerning any prisoner death at FCCW. To the extent requested by the Defendant and agreed upon by the Compliance Monitor and Plaintiffs’ counsel, documents provided pursuant to this provision shall be handled and maintained in a Confidential manner, and public copies of any report prepared by the Compliance Monitor containing a specific reference to information derived from such Confidential documents shall be redacted or filed under seal if submitted to the Court. 5. Limitations On The Scope Of The Compliance Monitor’s Role The Compliance Monitor shall not voluntarily testify as a witness or affiant in any other litigation matter or proceeding with respect to any actual or alleged acts or omissions on the part
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of the Defendant or any of its agents, representatives or employees related to this Settlement Agreement, nor as to any matter or subject of which he learned or became informed as a result of the performance of his role under this Settlement Agreement. Unless a conflict of interest is knowingly and expressly waived by all Parties, the Compliance Monitor shall not accept employment or provide consulting services that would present or constitute such a conflict with his responsibilities under this Settlement Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in connection with any claim or lawsuit against the Defendant or its agents, representatives or employees. The Compliance Monitor is not a State, County or local agency or agent thereof and, accordingly, the work papers developed and/or maintained by the Compliance Monitor in connection with the performance of his responsibilities under this Settlement Agreement shall not be deemed public records subject to public inspection or disclosure except for final versions of his reports to the Parties. Upon the expiration of one year after the date on which this Settlement Agreement concludes, the Compliance Monitor shall either return all VDOC documents that he obtains pursuant to the provisions of this Agreement to the possession and custody of the VDOC or shall certify to the VDOC in writing, subject to the penalty of perjury, that all such documents have been destroyed. Neither the Compliance Monitor nor any person or entity hired or otherwise retained by the Compliance Monitor to assist in the performance of his responsibilities under this Settlement Agreement or in furtherance thereof shall be subject to or liable for any claim, lawsuit or demand arising out of that performance.
6. Monitor Replacement The Compliance Monitor, except at his own election, may be terminated and replaced only upon mutual agreement of the Parties or by Order of the Court upon motion, but solely for
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good cause shown that is unrelated to the substance of his findings and conclusions. Good cause, for these purposes, shall include gross neglect of duties resulting in deficient performance; willful misconduct; inappropriate personal relationship with a representative of either of the Parties; a conflict of interest; or actual or alleged involvement in any criminal or other unlawful conduct during the pendency of this Settlement Agreement.
7. Monitor Compensation The Compliance Monitor’s reasonable fees and expenses incurred in performing his duties under the provisions of this Settlement Agreement shall be borne by the Defendant pursuant to the terms discussed and agreed upon between the Defendant and the Compliance Monitor.
V. ENFORCEMENT 1. The Court shall retain jurisdiction over the Parties for purposes of ensuring the implementation of this Settlement Agreement and shall preside over such further proceedings as may be necessary or appropriate to enforce its terms and conditions. 2. In the event that a problem of constitutionally-deficient medical care on the part of the Defendant, and brought to the Defendant’s attention by the Compliance Monitor or the Plaintiffs’ counsel pursuant to the provisions of Section IV.2.c. of this Settlement Agreement, has not been cured or otherwise resolved to the satisfaction of the Plaintiffs or the Compliance Monitor upon expiration of the 30-day period following the provision of such notice to the Defendant, the Plaintiffs, by and through their counsel, may initiate proceedings before the Court seeking specific performance of the terms of this Settlement Agreement, contempt sanctions against the Defendant, or both. The Plaintiffs shall bear the burden of proof by a preponderance of the evidence in such proceeding. In the event the Plaintiffs prevail in the prosecution of such
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enforcement action, they may petition the Court for an award of their reasonable costs and attorneys’ fees incurred in bringing the action.
3. In the event of a medical emergency posing a substantial threat of immediate harm to any prisoner residing at FCCW, as identified by the Compliance Monitor or the Plaintiffs through counsel, the notice and 30-day cure provisions of this Settlement Agreement shall be deemed waived by the Defendant and the Plaintiffs, through counsel, may seek immediate enforcement of its terms by the Court.
VI. CONSTRUCTION, IMPLEMENTATION AND TERMINATION 1. The implementation of this Settlement Agreement shall begin no later than the Effective Date. 2. Except to the extent otherwise agreed upon by the Parties under a specific provision set forth herein, the Defendant shall implement all provisions of this Settlement Agreement within 30 days of the Effective Date. 3. The VDOC Operating Procedures applicable to FCCW, except to the extent maintained on a confidential, non-public basis pursuant to applicable law or regulation, and the Guidelines, Standards and Performance Measuring Tools governing and establishing a basis for assessment of whether the provision of medical care at FCCW is satisfying constitutional standards, shall all be copied and made available for prisoner access and review at various locations within the Prison, including but not limited to the Prison Library, where a copy of these materials clearly and legibly labeled as such will be on display in an easily recognized and accessible location. 4. All women incarcerated at FCCW as of the Effective Date, and all women entering FCCW thereafter during the term that this Settlement Agreement is in effect, shall be
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provided in a timely manner with an Information Sheet, the contents of which shall be mutually agreed upon by the Parties, advising the recipients of the existence and material terms and conditions of this Settlement Agreement including, without limitation, contact information for the Compliance Monitor. The Information Sheet shall expressly advise that any direct communications by any offender to the Compliance Monitor regarding any medical care problem or concern shall not be a substitute for the obligation to comply with the Offender Grievance Procedure.
5. Failure by any Party to enforce or seek to enforce this Settlement Agreement or any provision thereof with respect to any deadline or any other obligation to be performed hereunder shall not be construed as a waiver of that Party’s right to enforce or seek to enforce other deadlines or conditions of this Settlement Agreement.
6. This Settlement Agreement reflects and shall constitute the entire agreement of the Parties. No prior or contemporaneous communications, oral or written, shall be deemed relevant or admissible in any proceeding for purposes of determining the meaning of any provisions hereof, in this or any other action.
7. This Settlement Agreement shall be applicable to and binding upon the Parties and their successors, officers, agents, employees and assigns. Any VDOC Requests for Proposal and/or contracts for the provision of medical care at FCCW issued or entered into on or after the Effective Date shall expressly incorporate by reference and shall be subject to all of the terms and conditions of this Settlement Agreement.
8. Except as regards the members of the Plaintiff Class, this Settlement Agreement is not intended to affect, impair, enhance or expand the right of any individual person or entity to seek relief against the Defendant, its employees or agents for their past, current or future
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conduct; accordingly, this Settlement Agreement, except to the extent expressly set forth herein, does not alter any legal standards governing any such claim under federal and/or Virginia law.
9. If any provision of this Settlement Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect or impair this Settlement Agreement as a whole or any of the remaining provisions thereof except as dictated by applicable law or public policy.
10. This Settlement Agreement shall terminate as of the date on which the Defendant has achieved substantial compliance with all elements of performance of its obligations to provide constitutionally-adequate medical care under the Eighth Amendment, subject to the Compliance Monitor’s evaluation under this Settlement Agreement, and has consistently maintained such substantial compliance for a period of one year, provided, however, that the termination may not take effect less than three years from the Effective Date unless the Parties, by and through their respective counsel, mutually agree to termination within a shorter period of time.
VII. ATTORNEYS’ FEES AND COSTS The Parties, in mutual good faith, shall exercise their best efforts to agree upon the measure of reasonable attorneys’ fees and litigation costs, including such attorneys’ fees and costs as may be incurred in implementing the terms and conditions of this Settlement Agreement (except as contemplated by Section V.2. hereof), that shall be paid to the Plaintiffs by the Defendant. If, within 30 days after the date on which the Motion for Preliminary Approval of this Agreement is filed, the parties have been unable to resolve the matter of recoverable attorneys’ fees and costs by mutual agreement, the Plaintiffs may submit a petition to the Court
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for the determination and awarding of fees and costs to the Plaintiffs as the prevailing parties in this action pursuant to 42 U.S.C. §1988.
VIII. PLRA FINDINGS The Parties hereby stipulate, and request that the Court, upon independent review and consideration, find that this Settlement Agreement complies with the Prison Litigation Reform Act. The Parties agree that the prospective relief established by this Settlement Agreement is narrowly drawn, extends no further than is necessary to address and remedy the violations of federal rights alleged by the Plaintiffs in their pleadings in this action, is the least intrusive means necessary to correct these alleged violations, and will not have any adverse impact on public safety or the operation of the criminal justice system. Accordingly, the Parties agree and they jointly request that the Court find that this Settlement Agreement complies in all respects with the provisions and requirements of 18 U.S.C. § 3626(a). Any admission made for purposes of this Settlement Agreement is not admissible if presented by any third party in any other proceeding. This Settlement Agreement is not intended to have and shall not have any preclusive effect except as between the Parties hereto, and does not resolve, adjudicate or bar, or purport to resolve, adjudicate or bar, any claim for damages against the Defendant by any former, current or future Class member.
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Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 29 of 57 Pageid#: 4113

Mary C. Bauer, VSB No. 31388

(mary@justice4all.org)

(

Abigail Turner, VSB No. 74437

(abigail@justice4all.org)

Brenda E. Castañeda, VSB No. 72809

(brenda@justice4all.org)

Anglea Ciolfi, VSB No. 65337

(angela@justice4all.org)

Erin M. Trodden, VSB No. 71515

(erin@justice4all.org)

Ivy A. Finkenstadt, VSB No. 84743

(ivy@justice4all.org)

LEGAL AID JUSTICE CENTER

1000 Preston Ave., Suite A

Charlottesville, VA 22903

(434) 977-0553

and

Deborah M. Golden (admitted pro hac vice) (Deborah_Golden@washlaw.org) Elliot Mincberg WASHINGTON LAWYERS’ COMMITTEEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000

and

29 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 30 of 57 Pageid#: 4114

Theodore A. Howard (admitted pro hac vice) (thoward@wileyrein.com) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000 By: /s/Brenda E. Castañeda
Attorneys for Plaintiffs
Richard C. Vorhis, VSB No. 23170 rvorhis@oag.state.va.us) J. Michael Parsons, VSB No. 68520 (jparsons@oag.state.va.us) Correctional Litigation Section, Criminal Justice and Public Safety Division OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, VA 23219 (804) 784-0046
By: /s/Richard C. Vorhis Attorneys for Defendants
APPROVED AND SO ORDERED this __ day of ____________, 2015
The Hon. Norman K. Moon Senior U.S. District Judge
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APPENDIX A
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SUMMARY OF VDOC OPERATING PROCEDURES REVISIONS As an element of the resolution agreed upon by Plaintiffs Cynthia B. Scott, et al., and the Virginia Department of Corrections (VDOC) Defendants in settlement of the case captioned Scott, et al. v. Clarke, et al., Case No. 3:12-cv-00036-NKM (W.D. Va.), and in accordance with the provisions of Section 2 of the Memorandum of Understanding entered into by the parties on November 25, 2014, the parties, with the assistance of and in collaboration with their respective medical consultants and the designated Compliance Monitor, Nicholas Scharff, M.D., MPH, have agreed upon revisions to the following VDOC Operating Procedures (OPs) which, as revised, will serve as guidance for the provision of medical care at Fluvanna Correctional Center for Women on and after the Effective Date of the Settlement Agreement: OP 411.1 Offender Transportation [Non-Public] OP 420.2 Use of Restraints and Management of Offender Behavior [Non-Public] OP 425.2 Hospital Security [Non-Public] OP 701.1 Health Services Administration OP 720.1 Access to Health Services OP 720.2 Medical Screening Classification and Levels of Care OP 720.3 Health Maintenance Program OP 720.4 Co-Payment for Health Care Services OP 720.5 Pharmacy Services OP 730.1 Mental Health Services: Administration OP 730.2 Mental Health Services: Screening, Assessment and Classification OP 730.5 Mental Health Services: Suicide Prevention and Behavior Management OP 740.1 Infectious Disease Control OP 810.1 Offender Reception and Classification
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An itemized summary of the agreed-upon revisions follows:
1. OP 411.1 Offender Transportation [Non-Public]
The revisions to OP 411.1 accomplish the following changes:
a. Acknowledge that removal of restraints for purposes of necessary medical treatment is acceptable.
b. Strike an appropriate balance between safety concerns and doctor-patient privacy in the context of correctional officer observation of off-site encounters between a prisoner and her medical care provider.
Also acknowledge that in the event a prisoner is required to disrobe for purposes of examination or treatment, the correctional officer maintaining visual observation of the prisoner shall be the same sex as the prisoner absent an emergency.
2. OP 402.2 Use of Restraints And Management of Offender Behavior [Non-Public]
The revisions to OP 420.2 accomplish the following changes:
a. Provide for additional measures to assure the safe transportation of pregnant offenders restrained by handcuffs during their second and third trimesters of pregnancy.
b. Provide for additional safety measures with respect to monitoring of prisoners subject to restraints in their cells for behavior management reasons.
3. OP 425.2 Hospital Security [Non-Public]
The revisions of OP 425.2 accomplish the following changes:
a. Recognize that off-site specialists and medical providers at FCCW should be able to communicate directly and in real time with one-another in the course of the offsite specialist’s examination of the prisoner.
b. Recognize the option of removing restraints, fully or in part, upon the request of attending medical staff in connection with diagnostic examination or treatment.
c. Recognize, per the revisions to OP 411.1, § XV.A.7.d., that when a prisoner offsite must disrobe for specialist diagnosis or treatment, the observing correctional officer must be of the same sex, except in emergency circumstances.
4. OP 701.1 Health Services Administration
a. Section IV.A.3.
This provision, as revised, will state as follows: 2
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The [Health Services Unit] and the medical department at [FCCW] shall develop measurable goals and objectives in support of the mission and philosophy of DOC healthcare, including, but not limited to, performance measures for timely access to care and medication; continuity of care and medication; coordination of care and clinical quality in accordance with Departmental clinical guidelines and nursing protocols. These goals and objectives are reviewed annually and updated as needed.
5. OP 720.1 Access to Health Services
a. Section III.
i. The Definition for “Access to Care,” as revised, will state as follows:
Access to Care -- In a timely manner, patients are seen by a clinician, given a professional judgment, and receive care that is ordered.
ii. A Definition for “Medical Practitioner” has been added and will state as follows:
Medical Practitioner -- A physician, physician’s assistant, or nurse practitioner licensed to practice medicine in the Commonwealth of Virginia or in the jurisdiction where the treatment is to be rendered or withheld.
iii. The Definition for “Sick Call,” as revised, will state as follows:
Sick Call -- Care for ambulatory offenders with health care requests which are evaluated and treated in a clinic setting, it is the system through which each offender reports for and receives appropriate health services for a non-emergency illness or injury, in a timely manner in consideration of medical urgency.
iv. A Definition for “Urgent Care” has been added and will state as follows:
Urgent Care -- Treatment of an acute condition or deterioration of a chronic condition that is not emergent, but if left untreated could deteriorate into a more serious or emergent problem.
b. Section IV.A.I.
The initial statement in this provision, as revised, will state as follows:
The Facility Unit Head, in conjunction with the Health Authority, will ensure that offenders have timely access to, and are provided adequate health care services. The continuity of health care including the continuity of medication shall be available from admission to discharge.
3
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c. Section IV.A.2.
This new provision will state as follows:
The facility shall establish and maintain a sufficient number of health staff of varying types or adopt such other measures as shall be necessary to provide offenders with adequate and timely evaluation and treatment, including continuity and coordination of care. Nurse practice falls within the scope of nursing licenses. Nursing coverage is available around the clock at FCCW.
d. Section IV.A.3.
This provision, as revised, will state, in pertinent part, as follows:
Each Health Authority shall ensure that offenders entering their facility are provided with information about procedures to access routine and emergency healthcare. Information on access to health services is communicated to offenders in writing and orally in a form and language that is easily understood.
e. Section IV.A.5.
This provision, as revised, will state as follows:
Offenders have unimpeded access to healthcare, including, but not limited to, adequate pain management for acute and chronic conditions and to a system for processing complaints regarding health care. Offenders may process complaints regarding health care through the Offender Grievance Procedure in institutions or by appeal to the Facility Unit Head at Community Corrections facilities.
f. Section IV.A.9.
This new provision will state as follows:
Offenders are to be notified that laboratory and diagnostic testing results have been received and reviewed and that the results are either (check box) “acceptable” or “please see practitioner to discuss the results.”
g. Section IV.A.12.c.
This new provision will state as follows:
Co-payment fees shall be waived when appointments or services, including follow-up appointments, are initiated by health care staff, including visits for medication renewals, and for preventive screenings.
h. Section IV.B.1.
This provision, as revised, will state as follows, and will be moved to become Section IV.B.8.
4
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Each facility shall evaluate all offender health care complaints. The grievance mechanism is an important component of the facility quality management program. The grievance process allows a patient to question or complain about health care services. The facility logs and tracks incoming grievances to assure timely responses. The facility is responsive to the complaints in a timely and meaningful manner. The facility performs quantitative and qualitative analysis of grievance data as part of its quality management program. FCCW data is analyzed by DOC as part of its contract oversight function.
i. Section IV.B.2.
This provision, as revised, will state as follows:
1. Emergency Complaints
a. Twenty-four hour emergency medical services shall be available and complaints handled immediately. Each facility shall have a written plan to provide 24-hour emergency care (see Operating Procedure 720.7, Emergency Medical Equipment and Care).
b. An adequate inventory of first aid kits and emergency medical equipment and supplies should be maintained at all times in accordance with Operating Procedure 720.7, Emergency Medical Equipment and Care. Facilities shall provide for on-site emergency first aid, CPR, and crisis intervention.
j. Section IV.B.3.
Medical requests should be triaged within 24 hours by a qualified health care professional or health-trained staff, and the offender seen by a qualified health care professional within 72 hours.
a. For medical complaints deemed to be urgent, a referral shall be made for the offender to see a medical practitioner, and the offender should be seen by the practitioner within 72 hours of the referral.
b. For medical complaints determined to be routine, if referral to a medical practitioner is deemed to be indicated, the offender should be seen by the practitioner within two weeks of the referral.
6. OP 720.2 Medical Screening Classification and Levels of Care
a. Section III
i. A Definition for “Health-Trained Staff” has been added and will state as follows:
5
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Health Trained Staff -- A DOC employee, generally a correctional officer, who has been trained to administer health screening questionnaires, including training as to when to refer an offender to health care staff and at what level of urgency.
ii. The Definition for “Qualified Healthcare Personnel,” as revised, will state as follows:
Qualified Healthcare Personnel -- A licensed LPN, RN, physician assistant, nurse practitioner or physician.
b. Section IV.A.3.
This new provision will be transferred and inserted within OP 720.1, § IV.A.1., subject to a cross-reference to OP 810.1 if VDOC deems appropriate.
c. Section IV.B.1
This provision, as revised, will state as follows:
An intake medical screening shall be performed by health-trained staff or qualified health care personnel upon the offender’s arrival into the DOC, i.e., at a Reception and Classification Center, Detention Center, or Diversion Center. The purpose of the medical intake screening is to ensure that emergent and urgent health needs are met and to protect staff and offenders from unnecessary exposure to communicable disease.
d. Section IV.B.4.
This provision, as revised, will include, among the list of subjects as to which inquiry is made in the course of intake medical screening, the following additional subject:
 Current and prescribed medications
e. Section IV.B.5.
This new provision will state as follows:
For offenders on medication, a medical practitioner shall decide whether to continue, discontinue or modify the medication within 24 hours of arrival and shall prescribe accordingly. Medication shall be available to the offender at an time considered appropriate by the medical practitioner.
f. Section IV.D.1.g.
This provision will state as follows:
6
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Cervical cytology (Pap test) and testing for Chlamydia and gonorrhea (females).
g. Section IV.E.2.a. This provision, as revised, will state as follows: [Health Appraisals shall be conducted] [w]ithin 14 days after arrival at the facility, but sooner for incoming offenders with more urgent conditions, and in all cases consistent with the degree of urgency. h. Section IV.E.6. This provision, as revised, will state as follows:
The health assessment shall conform to age and gender recommendations following generally accepted national guidelines, including pelvic examinations, Pap smears and mammography. i. Section IV.I.5.a.-e. This provision, as revised, as follows: The following medical categories must be considered in identifying offenders who may require medical classification and possible separation for appropriate diagnosis and treatment:
(i) communicable disease (ii) physical disability (iii) cognitive or developmental disability (iv) serious mental illness (v) risk of harm to self or others (vi) chronic illness and debility. j. Section V.A.2.a.
This provision, as revised, will state as follows: Offenders shall have continuity and coordination of care for chronic conditions such as hypertension, diabetes, cancer, and other diseases that require periodic care and treatment. They shall be monitored every six months if their condition is controlled and stable. For those whose conditions are not controlled and stable, they shall be monitored every three months, at a minimum.
7
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k. Section V.A.5.b.i.
This provision, as revised, will state as follows:
Infirmary care is appropriate to meet the serious medical needs of patients. This includes physical plant accommodations and hygiene; privacy; heat; and staffing.
l. Section V.A.5.b.ii.
This provision, as revised, will state as follows:
Each facility with an infirmary shall develop procedures to define the scope of services available, including a program to provide palliative care, including pain management, where medically appropriate. There shall be a program to address the needs of terminally ill patients, including voluntary hospice programs. See Operating Procedure 820.2, Re-entry Planning, for information on release of terminally ill offenders.
m. Section V.A.9.a.
This new provision will state as follows:
Offenders are essentially dependent on the physical conditions of and services provided by their facilities. The Facility shall make reasonable accommodations for physically-challenged and mentally ill prisoners, consistent with and as required by the law. This shall include, but not be limited to, medical and mental health care and physical plant accommodations; medication; protection from heat injury; skilled nursing care and programming. Health care, security and other staff shall avoid disciplining prisoners for their disabilities and shall provide personal safety protection for those with disabilities, especially the elderly. This includes access to medical services in Building 2 and wheelchair access in dining halls. In addition, patients shall be provided toilet access, consistent with their medical needs as determined by a medical practitioner.
n. Section V.A.9.g.
This new provision will state as follows:
Physical therapy shall be available on or off-site, as appropriate, and shall be carried out, subject to the offender’s consent, a prescribed by the offender’s physician.
o. Section V.B.1.
This provision, as revised, will state as follows:
The utilization management program works to enhance quality of care by providing timely access to an appropriate level of care.
8
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p. Section V.B.8.a-b.
These provisions, as revised, will state as follows:
All UM requests shall be reviewed and returned to the facility within 5 working days. All urgent UM requests are returned within 48 hours. Denials or alternate recommendations shall only be issued by a licensed physician.
q. Section V.B.16.
This new provision will state as follows:
Initial referrals shall be accomplished within 30 days of the initial request. When this is not possible, unless otherwise indicated, a physician shall see the patient every 30 days until the [referral] visit is accomplished, to review for deterioration and increased urgency.
r. Section V.B.19.a.-b.
This new provision will state as follows:
Consultant recommendations shall be acknowledged in the Health Record and either followed or amended, with Health Record documentation of the rationale for not following the consultant’s recommendations. Follow-up appointments shall be scheduled by the Facility and realized, as per the consultants’ orders as determined by the facility physician. Some types of follow-up care can be provided by the facility physician without transporting the offender to the consultant.
7. OP 720.3 Health Maintenance Program
a. Section IV.A.1.-2.
This provision, as revised, will state, in pertinent part, as follows:
Each facility should operate a health education program appropriate to its mission and offender population, so that health education and wellness information is provided to all offenders. Education methods may include posters, printed materials, seminars, videos, and individual instruction. The form and format should be designed to maximize offender comprehension.
b. Section IV.C.3.
This provision, as revised, will state as follows:
The conditions for periodic health examinations for offenders are determined by the Health Authority, based on age and gender, in accordance with generally accepted national standards.
9
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c. Section IV.D.6.
This provision, as revised, will state as follows:
Each offender who does not have a record of a positive test result will be offered a test for infection with human immunodeficiency virus (HIV) at intake and within 180 days of the offender’s scheduled release.
8. OP 720.4 Co-Payment for Health Services
OP 720.4 shall be suspended in its entirety for six months from the Effective Date of the Settlement Agreement pending the parties’ work on development of a comprehensive Operating Procedure with respect to compliance with the Americans With Disabilities Act, pursuant to their Settlement Agreement, Section III.2.c. at page 15.
9. OP 720.5 Pharmacy Services
a. Section IV.A.2.
This provision, as revised, will state as follows:
[Proper management of pharmaceuticals includes] [a] formalized process for obtaining non-formulary medications and a process for the prescribing physician to appeal denials of non-formulary prescriptions.
b. Section IV.A.3.
This provision, as revised, will state as follows:
There is continuity of medication on intake, whenever clinically appropriate, as determined by the DOC physician.
c. Section IV.A.9.
This provision, as revised, will state as follows:
Timing of medication administration is medically appropriate. Facility administration must coordinate medically necessary medication administration schedules with facility operation and offender movement schedules.
d. Section IV.A.10.
This provision, as revised, will state as follows:
Prescription medications shall be administered according to the Virginia Regulations Governing the Practice of Pharmacy. This shall include, among other things, labels with patient name, drug name, instructions and expiration date.
e. Section IV.A.11.
10
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This new provision will state as follows:

Provision should be made for medications to be delivered to offenders indoors during increment weather.

10. OP 730.2 Mental Health Services: Screening, Assessment and Classification

a. Section III.

A Definition for “Health-Trained Staff” has been added and will state as follows:

Health-Trained Staff -- A DOC employee, generally a correctional officer, who has been trained to administer health screening questionnaires, including training as to when to refer an offender to health care staff and at what level of urgency.

11. OP 730.5 Mental Health Services: Suicide Prevention and Behavior Management

a. Section V.G.1.-13.

These provisions, as revised, will state as follows:

1. This operating procedure provides guidance whereby offenders may be restrained within a cell for clinical reasons as determined by a Qualified Mental Health Professional (QMHP), subject to consultation with a DOC physician or Ph.D.-level psychologist, after reaching the conclusion that less intrusive measures would not be successful.

*

*

*

c. Initial authorization is for up to 12 hours but the offender may be released earlier based on the recommendation of the QMHP or physician.

*

*

*

5. When contact with a DOC physician or Ph.D.-level psychologist is not possible, the Facility Unit Head or Administrative Duty Officer may determine that an emergency exists and authorize temporary restraint of an offender within a cell until a DOC physician or Ph.D.-level psychologist can be contacted.

6. When a QMHP, subject to consultation with a DOC physician or Ph.D.level psychologist, considers it necessary for an offender to be restrained beyond 12 hours, the clinician will advise the Warden.

*

*

*

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7. At the 12-hour mark, an Incident Report Addendum will be completed by the Warden documenting either approval for continued restraints or disapproval and the offender’s release from restraints.

8. If the clinician recommends that restraints be continued beyond 24 hours, the Warden will be advised and will contact the Regional Administrator for approval. If the Regional Administrator approves the request, s/he will notify the Regional Operations Chief.

9. At the 24-hour mark, an Incident Report Addendum will be completed by the Warden documenting either the approval of continued restraints or disapproval and the offender’s release from restraints.

10. When an offender is going to be restrained in excess of 24 hours, the QMHP, subject to consultation with a DOC physician or Ph.D.-level psychologist, will:

a. Notify the Regional Mental Health Clinical Supervisor (MHCS) via telephone and via e-mail, attaching the most recent Mental Health Monitoring Reports 730_F14, progress notes, and any other related documentation as to why the offender was initially placed in restraints and why restraints are recommended beyond 24 hours.

b. Update the MCHS every day that the offender remains in restraints.

11. When an offender is going to be restrained in excess of 24 hours the Mental Health Clinical Supervisor will notify the Chief of Mental Health and provide an update every day that the offender remains in restraints.

12. An offender may not be restrained beyond 48 hours without the approval of Regional Administrator, Regional Operations Chief, Chief of Corrections Operations, and the Chief of Mental Health.

13. Approved Restraints

*

*

*

iii. Medically ordered restraints are limited to Humane Restraints. This requirement does not preclude the use of metal restraints by security when Humane Restraints have proven ineffective due to an offender’s behavior or prior history. The offender’s wrists and/or ankles will be wrapped in gauze or adhesive tape by medical staff prior to metal restraints being applied.

b. Section V.G.18.

This provision, as revised, will state, in pertinent part, as follows:

12

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A nursing or other qualified medical person, when on duty at the Facility, will examine the offender as soon as possible after restraints have been initially applied, and at any time when they are reapplied, to ensure that circulation is adequate. Health-trained staff or health services nurses shall monitor and document vital signs at least every two hours. Medical personnel shall assure that the patient has adequate hydration, release for toileting, and release of limbs to prevent the development of blood clots.

c. Section V.G.19.

This provision, as revised, will state, in pertinent part, as follows:

b.

Health trained staff or health services nurses will directly observe

the offender in restraints at least every fifteen minutes, and more

often if necessary, as directed by the QMHP or physician.

Documentation of the status checks, behaviors, etc., will be made

on the Special Watch Log. 425-FS.

d. Section VII.A.1.

This provision, as revised, will state as follows:

As legally appointed custodians of offenders, the DOC has a responsibility to provide for their health and safety. An offender who chooses to go on a hunger strike (i.e., refuses fluids and/or nutrition intake for five consecutive meals) presents a unique challenge to the orderly operation of a correctional facility due to extra demands placed on security staff, the necessary medical assessments and daily evaluations, increased psychological monitoring and administrative review.

e. Section VII.B.1.

This provision, as revised, will state as follows:

The Shift Commander will notify medical staff, mental health staff and the Administrative Duty Officer after the offender’s declaration of a hunger strike and/or after the fifth consecutive missed meal as documented via the routine security checks.

f. Section VII.B.9.

This provision, as revised, will state as follows:

Nursing staff shall visit the offender on a hunger strike daily, with measurement and recording of weight and vital signs. Nursing staff shall notify a physician if the offender is losing weight.

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12. OP 740.1 Infectious Disease Control
a. Section IV.A.2.-3.
This provision, as revised, will state as follows:
Each facility should establish and maintain a multidisciplinary team that includes clinical, security and administrative representatives and meets at least quarterly to review communicable disease and infection control activities. There is an effective program that includes surveillance, prevention and control of communicable disease. Among other things, this includes expedited access to prophylactic measures for high-risk exposures, such as blood exposures.
b. Section IV.B.1.
This provision, as revised, will state as follows:
All workers who may come in contact with blood and other potentially infectious material in order to perform their jobs, especially Health Care Personnel (HCP) and offenders who work in health care areas, should routinely use barrier precautions to protect skin and mucous membranes. This includes the regular use of gloves, facemasks, face shields, eyewear, and gowns or aprons as needed. Disposables should be used, as much as possible, and discarded in an approved manner after each use.
c. Section IV.C.1.d.
This new provision will state as follows:
Health care staff shall be trained on the urgency of evaluation and prophylactic treatment for high-risk exposures.
d. Section IV.M.4.a. & c.
This new provision will state as follows:
An offender exposed should be evaluated as to whether the exposure was “high risk.” In the case of a high-risk exposure, the exposed offender should be directed to a facility for evaluation and prophylactic treatment, immediately and no longer than within a few hours after the exposure. There is a very small window of opportunity to prevent the development of HIV infection and/or viral hepatitis in an exposed person.
13. OP 810.1 Offender Reception and Classification
a. Section III
A Definition for “Health-Trained Staff” has been added and will state as follows:
14
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Health-Trained Staff -- A DOC employee, generally a correctional officer, who has been trained to administer health screening questionnaires, including training as to when to refer an offender to health care staff and at what level of urgency.
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APPENDIX B
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SUBJECTS FOR COMPLIANCE MONITOR’S PERFORMANCE MEASURING TOOLS As contemplated by Section III.2.d. of the parties’ Settlement Agreement, the Compliance Monitor shall develop Performance Measuring Tools for utilization in evaluating the Defendant’s performance and satisfaction of its obligation to provide constitutionally-adequate medical care at FCCW. Those Tools will have as their focus the following subjects, as previously identified by the parties in Section 2 of their November 25, 2014 Memorandum of Understanding: 1. Provider staffing levels 2. Intake screening of offenders 3. Comprehensive health assessments 4. The Sick Call Process/Access to Health Services 5. Offender’s Co-Pay Policy 6. Diagnosis and Treatment of Offender Illnesses 7. Response to medical emergencies/Emergency Medical Care 8. Infirmary Conditions and Operations 9. Chronic Care 10. Infectious disease control/Infectious waste management 11. Utilization Management
a. Timely referrals to outside providers of specialized care b. Access to non-formulary medications
12. Medication administration 13. Continuity in supply and distribution of Medical Equipment 14. Follow-up care in accordance with outside specialists’ instructions 15. Physical therapy
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16. Offender Grievance Process (Medical care issues) 17. Offender access to information regarding diagnosis and treatment 18. Reasonable accommodations for disabilities and special needs 19. Guidance/training of Correctional Staff 20. Care/release of terminally-ill offenders 21. Conduct of and follow up regarding Mortality Reviews 22. Continuous Quality Improvement protocols 23. Contractor oversight by VDOC
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APPENDIX C
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NICHOLAS SCHARFF M.D.
252 Hathaway Lane Wynnewood PA 19096 Phone: 610-299-8075
Fax: 610-642-0438 nscharff3@gmail.com ______________________________________________________________________________________
SUMMARY
General internist with extensive patient care and administrative experience in private practice, public health, and corrections, now retired from the Pennsylvania Department of Corrections and working part-time as a correctional physician and consultant in correctional medicine and health care administration.

MEDICAL LICENSURE
Pennsylvania Medical Physician & Surgeon, MD017314E Delaware Physician M.D., C1-0010760 U.S. Drug Enforcement Agency Practitioner, BS0440719 Delaware Controlled Substance Registration, DR-0009851

expires 12/31/2014 expires 03/31/2015 expires 02/29/2016 expires 06/30/2015

PROFESSIONAL EXPERIENCE
LAW DEPARTMENT, CITY OF PHILADELPHIA
Medical Contract Monitor, Philadelphia Prison System. Inspection of procedures and outcomes in the medical program. Semi-annual inspections and ongoing involvement with PPS and contractor quality assurance/quality improvement personnel.
CORRECT CARE SOLUTIONS
Correctional Physician, Howard R. Young Correctional Institution, Wilmington, DE. Medical assessment and treatment of sentenced and un-sentenced inmate patients; routine periodic evaluation, acute and chronic care.
Correctional Physician, State Correctional Institution, Graterford, PA. Medical assessment and treatment of sentenced inmate patients including routine periodic evaluation, acute, and chronic care.
State Medical Director, Acting, part-time, Lemoyne, PA. Assist CCS Regional Vice President and PA DOC Chief of Clinical Services in administration of correctional medical services in Pennsylvania prisons.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS
Chief of Clinical Services, Bureau of Healthcare Services. Responsibility for oversight, quality assurance/quality improvement, and policy for medical care, psychiatric care, dentistry, including policy revision, program planning, and program evaluation. Primary liaison to the Secretary of Corrections, the rest of the Department of Corrections, and other

2014-present
2014-present 3-6/2014 1/2015-present 6/2015-present
04/2004-12/2013 2006-2013

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NICHOLAS SCHARFF MD

Page 2

agencies in Pennsylvania government. Assistant Medical Director, Bureau of Healthcare Services. Responsibility for oversight of adult medical care programs as provided by medical care contractor, quality assurance/quality improvement programs, infection control program; participation in policy revision, program planning, and program evaluation.

2004-2006

SOCIETY FOR CORRECTIONAL PHYSICIANS
Board of Directors, Chairman of Policy Committee

2011-2013 2013

STAR CENTER FOR SENSORY THERAPIES AND RESEARCH, GREENWOOD, CO.
Board of Directors
ZUBROW KERSHBAUM COHEN MD PC
Private practice of internal medicine at Pennsylvania Hospital in Philadelphia. Practice sold in 1997 to the Benjamin Franklin Clinics of the Pennsylvania Hospital, which was in turn subsumed into the Clinical Care Associates of the University of Pennsylvania Health System in 2000.
Teaching rounds Pennsylvania Hospital one or two months annually, rounding with a team of interns, residents, and students.
Journal Club for internal medicine residents, Pennsylvania Hosptial, weekly.
Chairman, Tissue Utilization and Transfusion Committee of the Professional Staff of the Pennsylvania Hospital.
Executive Committee of the Professional Staff of the Pennsylvania Hospital

2012-present
1981-2003
1977-2003 2003-present 1986-89 1993-94

Secretary, Board of Directors, Pennsylvania Hospital PHO
Chair Credentialing Committee, 1995-97 Chair Provider Services Committee 1996-97

1994-97

CORRECTIONAL MEDICAL CARE, INC.
Corporate Medical Director. Oversight of clinical services provided by corporate Staff, clinical activities of Medical Audit, Pharmacy & Therapeutics, Quality Assurance, and Utilization Review committees, and Risk Management program; screening and credentialing of medical professionals; final level of clinical appeals in grievance system; participation in continuing education and patient education programs.

2001-2003

AMERICOR, INC.

Vice-president for Medical Affairs. Oversight of clinical services provided by corporate staff, clinical activities of Medical Audit, Pharmacy & Therapeutics, Quality Assurance, and Utilization Review committees, and Risk Management program; screening and credentialing of medical professionals; final level of clinical appeals in grievance system; participation in continuing education and patient education programs.

2003

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NICHOLAS SCHARFF MD

Page 3

DEPARTMENT OF PUBLIC HEALTH, CITY OF PHILADELPHIA

Medical Director, Family Medical Care Services. Physician recruitment and oversight for seven District Health Centers providing comprehensive outpatient care throughout the City of Philadelphia. Consultation with the Director of Family Medical Care, and coordination with other categorical programs in the Department of Public Health. Instituted a Quality Assurance Program.

7/81-6/85

Medical Advisory Committee, Quality Assurance Committee, HealthPASS, an early Medicaid HMO serving patients in Southwest Philadelphia. I represented Family Medical Care Services on the Medical Advisory Committee, which became the Quality Assurance Committee.

1982-85

EIGHTH AND SPRUCE MEDICAL ASSOCIATES OF THE PHILADELPHIA HEALTH PLAN

7/77-7/81

GROUP MEDICAL DIRECTOR at Pennsylvania Hospital, negotiated annual capitation agreements with participating specialist physicians, supervised and represented Group physicians in our own negotiations with the Board and administration.

Member, Board of Directors of Philadelphia Health Plan, representing Eighth and Spruce Medical Associates.

U.S. Peace Corps, Nepal

Community development volunteer in a rural district in the Western Hills., speaking predominately Nepali, in which I am still fairly fluent; worked for the Home Ministry in a training-program for members of newly-constituted Village Councils teaching the essentials of their new form of government. Extended service for a third year in Kathmandu at program headquarters in the Ministry of Home Panchayat, developing teaching aids concerning village health and sanitation practices.

6/66-6/69

EDITORIAL EXPERIENCE
Hospital Physician, editorial board Journal of Correctional Health Care, reviewer

2002-2009 2003-2004

PUBLICATIONS
Larney S, Mahowald M, Scharff N, et al., “Epidemiology of Hepatitis C Virus in Pennsylvania State Prisons, 2004-2012: Limitations of 1945-1965 Birth Cohort Screening in Correctional Settings,” Am J Public Health 104(6):e69-e74.
PRESENTATIONS

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NICHOLAS SCHARFF MD

Page 4

Montgomery County Correctional Facility, Montgomery County, Pennsylvania, presentation to the Board of Directors: “Responding to Hepatitis C”
Centers for Disease Control and Prevention, Division of Viral Hepatitis: “Viral Hepatitis: Considerations for Jails” presented at a Consultancy on Management of Viral Hepatitis in Jails, Atlanta, Georgia

2/13/03 7/14/03

Johns Hopkins Bloomberg School of Public Health, "Corrections and Public Health" in Contemporary Issues in Public Health ( 550.862.81).

2/21/05

Johns Hopkins Bloomberg School of Public Health, “Remarks on Mid-Career MPH Training and 5/2005 the Distance Learning Program”

PA Mid-Atlantic AIDS Education and Training Center, “Medical Challengfes in an Aging Prison 6/12/2006 Population”

Pennsylvania Viral Hepatitis Conference, “Hepatitis B & C: Case Management Strategies”

11/17/06

St. Joseph’s Hospital, Reading, PA, “Correctional Health and Health Care”

11/20/06

American Correctional Association Meeting, Tampa, FL, “Meeting Community Standards” and “Immunization Program in the Pennsylvania DOC.”

1/20/2007

Pennsylvania Hospital Medical Grand rounds, “Corrections and Correctional Health”

1/14/2008

Penn Presbyterian Hospital Global Health Group, Philadelphia, “Correctional Health Care”

9/2008 and annually since

National Commission for Correctional Health Care Leadership Institutes, “Quality Improvement and Managing Change.” Using a quality improvement program to create and sustain a culture of change.

7/2009-14

University of Pennsylvania School of Nursing, Philadelphia, “Corrections and Correctional Health”

8/2012

PA DOC Crisis Intervention Training, “Confusion and Behavior: Beyond Mad and Bad” at Crisis 10/2012 – 12/2014 Intervention Training course for correctional personnel, presented approximately every 2 months.

National Commission for Correctional Health Care Leadership Institutes, “Infecton Control in the 7/2014 Correctional Setting.” Organizing and deploying an infection control program for prisons, jails, and correctional systems.

EDUCATION AND TRAINING

Johns Hopkins Bloomberg School of Public Health
Master of Public Health.
The Pennsylvania Hospital, Philadelphia, Pennsylvania
Internship and Residency, internal medicine.
Columbia University College of Physicians and Surgeons
Doctor of Medicine.
Yale University

6/00-5/03 6/74 -7/77 1970 –74

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NICHOLAS SCHARFF MD
Bachelor of Arts in English Literature.

Page 5
1962 –66

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NICHOLAS SCHARFF MD
Legal Depositions and Trial Experience since 2004
Estate of Joseph Robinson v. a Dr. Bober, Atlantic County; Deposed and testified June-July 2006 Estate of Travis Magditch v. Lehigh County et al., Lehigh County, No. 2012-C-5428
BOARD CERTIFICATIONS American Board of Internal Medicine

Page 6
6/2006 3/2015 1977-present

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs, Defendants.

CIVIL ACTION NO. 3:12-CV-00036
O R D E R
NORMAN K. MOON UNITED STATES DISTRICT JUDGE

ORDER GRANTING THE PLAINTIFFS’ CONSENT MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT The Plaintiff Class (collectively, “the Plaintiffs”) and Defendants Harold W. Clarke, A. David Robinson, Frederick Schilling and Tammy Brown, each in their official capacities as representatives of the Virginia Department of Corrections (“the VDOC Defendants”), have agreed upon the substantive provisions of a Settlement Agreement. The Agreement seeks to resolve all of the Plaintiffs’ claims in the above-styled case regarding allegations of deliberate indifference to their serious medical needs while confined at the Fluvanna Correctional Center for Women (“FCCW”) in violation of the Eighth Amendment’s ban on cruel and unusual punishment. This Court certified a class under Fed. R. Civ. P. 23(b)(2) to include all women who currently reside or will in the future reside at FCCW and who have sought, are currently seeking or will seek adequate, appropriate medical care for serious medical needs, as required by the Eighth Amendment. See docket no. 188. The Plaintiffs and the VDOC Defendants stipulate and agree that the prospective relief in the Settlement Agreement is narrowly drawn, extends no further than necessary to correct the violations of federal rights at FCCW as alleged by Plaintiffs in the Second Amended Complaint,
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is the least intrusive means necessary to correct these violations, and will not have an adverse
impact on public safety or the operation of a criminal justice system.
Based on the Court’s previous rulings certifying the Class, granting partial summary
judgment for the Plaintiffs and denying summary judgment to the Defendants, as well as the
Court’s initial review of the Settlement Agreement, and pending a final determination after a
Fairness Hearing to be held in accordance with the class action notice and comment process set
forth in Rule 23( e) of the Federal Rules of Civil Procedure, the Court hereby FINDS as follows:
1. The Plaintiff Class fully exhausted the administrative remedies available to them;
2. VDOC has a non-delegable duty under the Eighth Amendment to provide to all prisoners within its custody, including Plaintiffs, medical care that meets constitutionally minimum standards, without regard to whether day-to-day medical services are contractually provided;
3. The undisputed material facts establish that the original named Plaintiffs and several other members of the Class who offered sworn Declarations attesting to significant health problems have serious medical needs representative of the Class as a whole, which, absent treatment, could give rise to further significant injury and the unnecessary infliction of pain;
4. The Plaintiffs have presented ample evidence in their filings supporting class certification, their Motion for Partial Summary Judgment, and their response in opposition to the VDOC’s Motion for Summary Judgment, enabling a fact-finder to reasonably conclude that the VDOC Defendants are or have been deliberately indifferent to the serious medical needs of the Plaintiff class;
5. The proposed Settlement Agreement appears, upon preliminary review, to be (a) fair, adequate, and reasonable in light of the relevant factual, legal, practical, and procedural considerations of the Action, (b) free from collusion among the Plaintiffs and the VDOC Defendants to the detriment of class members, and (c) within the range of reasonableness to support possible final approval;
6. This Court has no reason to doubt the proposed Settlement Agreement’s fairness and adequacy; the Settlement Agreement has no obvious deficiencies; and the Settlement Agreement does not grant preferential treatment to the Plaintiff Class Representatives; and
7. The proposed Settlement Agreement does not violate the Constitution, any statute,
-2-
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or relevant jurisprudence. Rather, the prospective relief established by this Settlement Agreement is narrowly drawn, extends no further than is necessary to address and remedy the violations of federal rights alleged by the Plaintiffs in their pleadings in this action, is the least intrusive means necessary to correct these alleged violations, and will not have any adverse impact on public safety or the operation of the criminal justice system. See 18 U.S.C. § 3626(a) & (c).
Accordingly, on this sixteenth day of September, 2015, in the United States District Court
for the Western District of Virginia, it is hereby ORDERED as follows:
1. The Court hereby grants the Plaintiffs’ Consent Motion for Preliminary Approval of the Settlement Agreement;
2. Exhibit 2 to the Plaintiffs’ Memorandum (Notice to All FCCW Prisoners About Settlement in Scott v. Clarke) is approved and shall be distributed as follows:
a. The VDOC Defendants shall, within seven (7) calendar days of entry of this Order, provide a written copy of the Notice of Proposed Settlement to each individual prisoner housed at the Fluvanna Correctional Center for Women. This shall include, but not be limited to, the providing a copy of the Notice to each prisoner housed in a maximum custody unit, in segregation, in the mental health units, in the infirmary or otherwise held in isolation.
b. The VDOC Defendants shall, within seven (7) calendar days of entry of this Order, post a copy of the Notice in each general population housing unit, in the library, and in the law library, and shall ensure that the Notice remains posted until the Court makes its final determination on approval of the Proposed Settlement. At least five (5) copies of the Settlement Agreement, including all appendices, shall be available for review by prisoners in each of the prison libraries. Such copies shall be available for prisoners to inspect from at least 9:00 a.m. to 9 p.m., Monday through Saturday.
c. Prisoners who are not permitted physical access to a library shall be allowed to check out a copy of the Settlement Agreement, including all appendices, upon request.
d. The VDOC Defendants shall file and serve on Plaintiffs’ counsel a sworn declaration affirming that the notices were provided to each individual prisoner and published as required by the Court’s order.
3. The Plaintiffs’ counsel is authorized to meet with FCCW prisoners individually, or in groups if more than ten (10) request to meet with counsel, to answer questions and
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explain the details of the proposed Settlement.
4. Within seven (7) calendar days of entry of this Order, the VDOC Defendants shall mail the Notice and documents required by 28 U.S.C.A. § 1715 of the Class Action Fairness Act (CAFA) to the Attorney General of the United States. The VDOC Defendants shall file a Notice with the Court upon completion of the required CAFA mailings.
5. The Court schedules a Fairness Hearing for Monday, November 9, 2015, at 11:00 a.m. to determine whether the settlement of this action on the terms and conditions provided for in the proposed Settlement Agreement is fair, reasonable, and adequate and should be finally approved by the Court and whether to approve the request of Class Counsel for payment of attorneys’ fees and reimbursement of litigation costs;
6. Class Counsel shall file their Motion for attorneys’ fees and costs no later than 21 days before the Fairness Hearing if the parties are unable to reach a negotiated resolution. The VDOC Defendants shall make this Motion available for review by prisoners upon request.
7. All memoranda, affidavits, declarations, and other evidence in support of the request for final approval of the Settlement Agreement and Class Counsel’s request for approval of attorneys’ fees and costs shall be filed on or before Monday, October 19, 2015;
8. Any member of the Class may enter an appearance on his or her own behalf in this action through that class member’s own attorney (at the class member’s own expense), but need not do so. Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel.
9. Any member of the Class may write to the Court about her opinions on the fairness of the proposed Settlement and/or the Plaintiffs’ Motion for attorney fees. The Court will consider the written communications of the class members when deciding whether to approve the Settlement. Comments regarding the fairness of the settlement must include the case name, Scott v. Clarke, and case number, at the top of the first page. A written comment must contain the author’s full name and include all objections and the reasons for them, and must be signed by the class member. Comments must be postmarked by Thursday, October 29, 2015, and must be sent to the following address:
Clerk of the Court United States District Court 255 West Main Street Room 101 Charlottesville, VA 22902
A Class Member who desires to comment but fails to comply with the
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above-described objection procedure and timeline shall be deemed not to have objected, and that Class Member’s objections shall not be heard or considered at the hearing.
10. Alternatively, any Class Member who chooses to appear by a representative may appear at the Fairness Hearing to show cause why the proposed Settlement Agreement should or should not be approved as fair, reasonable, adequate, and in good faith, and/or why the request of Class Counsel for approval of attorneys’ fees and costs should or should not be approved as fair and reasonable. However, no person shall be heard at the Fairness Hearing to contest the approval of the terms and conditions of the proposed Settlement Agreement or the fees and costs requested by Class Counsel, unless that person (a) has sent or delivered written objections and copies of any supporting papers and briefs so that they are received no later than Thursday, October 29, 2015, to Class Counsel and counsel for the VDOC Defendants, and (b) has filed objections, papers, and briefs with the Clerk of the United States District Court for the Western District of Virginia, postmarked on or before the same date.
11. Any Class Member who does not submit an objection as provided in paragraphs 9 or 10 shall be deemed to have waived any objection to the Settlement Agreement that she may have and shall forever be forbidden from making any objection to the fairness, adequacy, or reasonableness of the Settlement, or to the attorneys’ fees and costs approved.
12. The Court may adjourn the Fairness Hearing from time to time without further notice other than to counsel of record and may approve the proposed Settlement Agreement and request for approval of attorneys’ fees and costs at or after the originally-scheduled Fairness Hearing.
13. The Court shall have continuing jurisdiction, during the term of this Settlement Agreement, to enforce the Agreement’s terms, and to enforce the Final Judgment.
It is so ORDERED.
The Clerk of the Court is DIRECTED to send a certified copy of this order to all counsel
of record.
ENTERED this sixteenth day of September, 2015.
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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs,

CASE NO. 3:12-cv-00036 INJUNCTION

JUDGE NORMAN K. MOON Defendants.

01/02/2019

In accordance with the accompanying findings of fact and conclusions of law, it is ORDERED as follows:
1) Pursuant to Federal Rule of Civil Procedure 65(d)(1)(A), this injunction is issued for the reasons set forth in the Court’s findings of fact and conclusions of law, namely: The Court has jurisdiction to enforce the terms of the parties’ Agreement to provide for constitutionally adequate medical care, and Defendants are in violation of those terms.
2) As used in this injunction: a. “Defendants” means, in their official capacities, VDOC Director Harold W. Clarke; VDOC Chief of Corrections Operations A. David Robinson; VDOC Director of Health Services Stephen Herrick; and FCCW Warden Eric Aldridge. b. “Plaintiffs” means class representatives Melissa Atkins, Cynthia B. Scott, Toni Hartlove, and all members of the class, previously certified by the Court, of present and future inmates at FCCW. c. “FCCW” means the Fluvanna (Va.) Correction Center for Women. d. “VDOC” means Virginia Department of Corrections. e. “Agreement” means the Settlement Agreement between Defendants and Plaintiffs that was filed in this action on September 15, 2015 (dkt. 221-1) and approved by

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the Court’s February 5, 2016 Final Judgment Order and the Court’s February 5, 2016 Findings of Fact and Conclusions of Law. (Dkts. 261, 262). f. “Shall” means must and denotes a mandatory obligation. g. “Nurse(s)” means either license practical nurse (LPN) or registered nurse (RN). h. “Compliance monitor” means Dr. Nicholas Scharff, the compliance monitor under the Agreement, or any successor compliance monitor. 3) Nothing in this injunction is intended to relieve, or shall be construed as relieving, Defendants of any obligation they otherwise possess under the Agreement or the Eighth Amendment. Nothing in this injunction is intended to diminish, or shall be construed as diminishing, any right possessed by Plaintiffs under the Agreement or the Eighth Amendment. 4) The Court finds—after giving substantial weight to any adverse impact on public safety or the operation of the criminal justice system—that this injunction is narrowly drawn to extend no further than necessary to remedy the violation of Plaintiffs’ Eighth Amendment rights as provided for by the parties in the Agreement, and that this injunction is the least intrusive means necessary to do so. 5) Within 45 days from the date of entry of this injunction, Defendants shall: a. continuously staff FCCW with the equivalent of seventy-eight full-time nurses. Defendants shall document their daily staffing levels and makes such document(s) available to the compliance monitor. b. train FCCW nurses, and any other individuals who dispense medication to Plaintiffs, on how and when to reorder or refill medications to ensure a continuity of supply.
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c. train FFCW nurses on the importance of, and how to, accurately record or chart the distribution of medication, as well as a patient’s vital signs, including but not limited to weight and pulse rate.
d. train FCCW nurses about timely responding to medical emergency, and about how to identify and address signs of cardiovascular and pulmonary afflictions.
6) Any nurse not currently working at FCCW but who begins working at FCCW shall also receive, as soon as reasonably possible, the training required in paragraph 5.
7) Within 60 days from the date of entry of this injunction, Defendants shall submit a report to the compliance monitor detailing the steps taken to effectuate the requirements in paragraph 5.
8) Within 14 days from the date of entry of this injunction, Defendants shall place—in a conspicuous, well-known, and readily available location in every FCCW building that houses at least one Plaintiff—the following equipment: a backboard or stretcher; an oxygen tank and mask; and a suction machine.
9) Within 30 days from the date of entry of this injunction, Defendants shall develop a protocol ensuring unimpeded access to timely medical care. In developing this protocol, Defendants shall: a. take into account the three-year delay for a colonoscopy experienced by Andrea Nichols, as well as the delay in timely and appropriate care experienced by Carolyn Liberato, Deanna Niece, and Marie Johnson; b. consider how similar experiences can be prevented the future, and;
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c. evaluate the deficiencies in FCCW’s sick call process (including the failure to screen sick calls within 24 hours and make provider referrals within 72 hours) and document specific actions Defendants will take to remedy them.
10) Within 45 days from the date of entry of this injunction, Defendants shall submit to the compliance monitor and Plaintiffs’ counsel the protocol Defendants developed in accordance with paragraph 9 and documentation showing their satisfaction of the requirements in parts (a) through (c) of paragraph 9.
11) Defendants shall ensure all future mortality reviews of deaths at FCCW contain a heading entitled “self-critical analysis” and contain, under that heading, the reviewer’s self-critical analysis of FCCW’s medical care of the deceased inmate, including an explanation of how medical care could have been improved. In the event the reviewer concludes medical care could not have been improved, Defendants shall transmit in a nonpublic manner a copy of the review to the Court, the compliance monitor, and Plaintiffs’ counsel within seven (7) days of its completion. The compliance monitor and Plaintiffs’ counsel shall treat any such copy as confidential information, not to be shared, disseminated, or made public without first obtaining leave of Court.
12) Defendants shall instruct and train all individuals handling medical grievances to provide each grievant a meaningful response (either in writing or orally) addressing the substance of each grievance, even if the substance of the grievance is ultimately found to be unfounded. Defendants shall implement, within 30 days from the date of entry of this injunction, a system of documenting that such a meaningful response is supplied. Such responses shall be conveyed to the grievant in a timely manner, as measured by the nature and seriousness of the grievance at issue.
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13) The compliance monitor should evaluate Defendants’ satisfaction of paragraphs 5 through 12 and include his views thereon in his periodic reports under the Agreement.
14) Unless otherwise ordered, this injunction shall termination upon termination of the Agreement.
15) This injunction takes effect immediately upon its entry. The Agreement remains in effect.
16) The Court’s order to Defendants to show cause why they should not be held in contempt (dkt. 495) is hereby discharged.
Entered this _2_n_d__ day of January, 2019.
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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, ET AL.,
v. HAROLD W. CLARKE, ET AL.,

Plaintiffs,

CASE NO. 3:12-cv-00036 INJUNCTION

JUDGE NORMAN K. MOON Defendants.

01/02/2019

In accordance with the accompanying findings of fact and conclusions of law, it is ORDERED as follows:
1) Pursuant to Federal Rule of Civil Procedure 65(d)(1)(A), this injunction is issued for the reasons set forth in the Court’s findings of fact and conclusions of law, namely: The Court has jurisdiction to enforce the terms of the parties’ Agreement to provide for constitutionally adequate medical care, and Defendants are in violation of those terms.
2) As used in this injunction: a. “Defendants” means, in their official capacities, VDOC Director Harold W. Clarke; VDOC Chief of Corrections Operations A. David Robinson; VDOC Director of Health Services Stephen Herrick; and FCCW Warden Eric Aldridge. b. “Plaintiffs” means class representatives Melissa Atkins, Cynthia B. Scott, Toni Hartlove, and all members of the class, previously certified by the Court, of present and future inmates at FCCW. c. “FCCW” means the Fluvanna (Va.) Correction Center for Women. d. “VDOC” means Virginia Department of Corrections. e. “Agreement” means the Settlement Agreement between Defendants and Plaintiffs that was filed in this action on September 15, 2015 (dkt. 221-1) and approved by

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the Court’s February 5, 2016 Final Judgment Order and the Court’s February 5, 2016 Findings of Fact and Conclusions of Law. (Dkts. 261, 262). f. “Shall” means must and denotes a mandatory obligation. g. “Nurse(s)” means either license practical nurse (LPN) or registered nurse (RN). h. “Compliance monitor” means Dr. Nicholas Scharff, the compliance monitor under the Agreement, or any successor compliance monitor. 3) Nothing in this injunction is intended to relieve, or shall be construed as relieving, Defendants of any obligation they otherwise possess under the Agreement or the Eighth Amendment. Nothing in this injunction is intended to diminish, or shall be construed as diminishing, any right possessed by Plaintiffs under the Agreement or the Eighth Amendment. 4) The Court finds—after giving substantial weight to any adverse impact on public safety or the operation of the criminal justice system—that this injunction is narrowly drawn to extend no further than necessary to remedy the violation of Plaintiffs’ Eighth Amendment rights as provided for by the parties in the Agreement, and that this injunction is the least intrusive means necessary to do so. 5) Within 45 days from the date of entry of this injunction, Defendants shall: a. continuously staff FCCW with the equivalent of seventy-eight full-time nurses. Defendants shall document their daily staffing levels and makes such document(s) available to the compliance monitor. b. train FCCW nurses, and any other individuals who dispense medication to Plaintiffs, on how and when to reorder or refill medications to ensure a continuity of supply.
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c. train FFCW nurses on the importance of, and how to, accurately record or chart the distribution of medication, as well as a patient’s vital signs, including but not limited to weight and pulse rate.
d. train FCCW nurses about timely responding to medical emergency, and about how to identify and address signs of cardiovascular and pulmonary afflictions.
6) Any nurse not currently working at FCCW but who begins working at FCCW shall also receive, as soon as reasonably possible, the training required in paragraph 5.
7) Within 60 days from the date of entry of this injunction, Defendants shall submit a report to the compliance monitor detailing the steps taken to effectuate the requirements in paragraph 5.
8) Within 14 days from the date of entry of this injunction, Defendants shall place—in a conspicuous, well-known, and readily available location in every FCCW building that houses at least one Plaintiff—the following equipment: a backboard or stretcher; an oxygen tank and mask; and a suction machine.
9) Within 30 days from the date of entry of this injunction, Defendants shall develop a protocol ensuring unimpeded access to timely medical care. In developing this protocol, Defendants shall: a. take into account the three-year delay for a colonoscopy experienced by Andrea Nichols, as well as the delay in timely and appropriate care experienced by Carolyn Liberato, Deanna Niece, and Marie Johnson; b. consider how similar experiences can be prevented the future, and;
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c. evaluate the deficiencies in FCCW’s sick call process (including the failure to screen sick calls within 24 hours and make provider referrals within 72 hours) and document specific actions Defendants will take to remedy them.
10) Within 45 days from the date of entry of this injunction, Defendants shall submit to the compliance monitor and Plaintiffs’ counsel the protocol Defendants developed in accordance with paragraph 9 and documentation showing their satisfaction of the requirements in parts (a) through (c) of paragraph 9.
11) Defendants shall ensure all future mortality reviews of deaths at FCCW contain a heading entitled “self-critical analysis” and contain, under that heading, the reviewer’s self-critical analysis of FCCW’s medical care of the deceased inmate, including an explanation of how medical care could have been improved. In the event the reviewer concludes medical care could not have been improved, Defendants shall transmit in a nonpublic manner a copy of the review to the Court, the compliance monitor, and Plaintiffs’ counsel within seven (7) days of its completion. The compliance monitor and Plaintiffs’ counsel shall treat any such copy as confidential information, not to be shared, disseminated, or made public without first obtaining leave of Court.
12) Defendants shall instruct and train all individuals handling medical grievances to provide each grievant a meaningful response (either in writing or orally) addressing the substance of each grievance, even if the substance of the grievance is ultimately found to be unfounded. Defendants shall implement, within 30 days from the date of entry of this injunction, a system of documenting that such a meaningful response is supplied. Such responses shall be conveyed to the grievant in a timely manner, as measured by the nature and seriousness of the grievance at issue.
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13) The compliance monitor should evaluate Defendants’ satisfaction of paragraphs 5 through 12 and include his views thereon in his periodic reports under the Agreement.
14) Unless otherwise ordered, this injunction shall termination upon termination of the Agreement.
15) This injunction takes effect immediately upon its entry. The Agreement remains in effect.
16) The Court’s order to Defendants to show cause why they should not be held in contempt (dkt. 495) is hereby discharged.
Entered this _2_n_d__ day of January, 2019.
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 CLOSED,CASREF,CLASS,EXH,MEDIATION,PROTO
U.S. District Court Western District of Virginia (Charlottesville) CIVIL DOCKET FOR CASE #: 3:12−cv−00036−NKM−JCH

Scott et al v. Clarke et al Assigned to: Judge Norman K. Moon Referred to: Magistrate Judge Joel C. Hoppe Cause: 42:1983 Civil Rights Act
Plaintiff
Cynthia B. Scott A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated

Date Filed: 07/24/2012 Date Terminated: 02/05/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Adeola Oluremilekun Ogunkeyede Legal Aid Justice Center 123 East Broad Street Richmond, VA 23219 804−643−1086 Fax: 804−643−2259 Email: adeola@justice4all.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amy Elizabeth Walters Legal Aid Justice Center 1000 Preston Ave., Suite A Charlottesville, VA 22903 434−977−0553 Fax: 434−977−0558 Email: amyw@justice4all.org TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Wilson Hanes Consumer Litigation Associates, PC 763 J. Clyde Morris Blvd., Suite 1A Newport News, VA 23601 757−930−3660 Fax: 757−930−3662 Email: elizabeth@clalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden Federal Public Defenders Office Western District of Virginia − Charlottesville 401 E Market Street, Suite 106 Charlottesville, VA 22902 434−220−3380 Email: erin_trodden@fd.org TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt Legal Aid Justice Center 6400 Arlington Blvd., #600 Falls Church, VA 22042 703−778−3450 Fax: 703−778−3454 Email: ivy@justice4all.org

TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla Legal Aid Justice Center 1000 Preston Ave., Suite A Charlottesville, VA 22903 434−529−1841 Fax: 434−977−0558 Email: kim@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett Consumer Litigation Associates 763 J. Clyde Morris Blvd., Suite 1A Newport News, VA 23601 757−930−3660 Fax: 930−3662 Email: lenbennett@clalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer Southern Poverty Law Center 1000 Preston Avenue Charlottesville, VA 22903 470−606−9307 Fax: 434−977−0558 Email: mary.bauer@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Frances Charlton Legal Aid Justice Center 1000 Preston Ave., Suite A Charlottesville, VA 22903 434−977−0553 Fax: 434−977−0558 Email: maryc@justice4all.org TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Marie Ellis Legal Aid Justice Center 1000 Preston Ave., Suite A Charlottesville, VA 22903 804−690−8924 Email: shannon@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner Legal Aid Justice Center 1000 Preston Avenue., Suite A Charlottesville, VA 22903 434−977−0553 x 138 Fax: 434−977−0558 Email: abigail@justice4all.org ATTORNEY TO BE NOTICED
Alex Ross Gulotta LEGAL AID JUSTICE CENTER SUITE A

1000 PRESTON AVENUE CHARLOTTESVILLE, VA 22903 434−977−0553 Fax: 977−0558 Email: alex@justice4all.org TERMINATED: 03/04/2014 ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo Kelly Guzzo, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 703−424−7576 Fax: 703−591−0167 Email: aguzzo@kellyguzzo.com ATTORNEY TO BE NOTICED
Angela A. Ciolfi Legal Aid Justice Center 1000 Preston Avenue., Suite A Charlottesville, VA 22903 434−529−1810 Fax: 434−977−0558 Email: angela@justice4all.org ATTORNEY TO BE NOTICED
Brenda Erin Castaneda Legal Aid Justice Center 1000 Preston Avenue., Suite A Charlottesville, VA 22903 434−977−0553 Fax: 977−0558 Email: brenda@justice4all.org ATTORNEY TO BE NOTICED
Casey Shannon Nash Kelly Guzzo, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 703−424−7571 Fax: 703−591−0167 Email: casey@kellyguzzo.com ATTORNEY TO BE NOTICED
Deborah Maxine Golden Washington Lawyers Committee for Civil Rights and Urban Affairs 11 Dupont Cirlce NW, Suite 400 Washington, DC 20036 202−319−1000 Fax: 202−319−1010 Email: deborah_golden@washlaw.org TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristi Cahoon Kelly Kelly Guzzo, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 703−424−7572 Fax: 703−591−0167 Email: kkelly@kellyguzzo.com ATTORNEY TO BE NOTICED

Plaintiff
Bobinette D. Fearce A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated TERMINATED: 03/31/2015

Philip Jerome Fornaci Washington Lawyers Committee for Civil Rights and Urban Affairs 11 Dupont Cirlce NW, Suite 400 Washington, DC 20036 202−332−2697 Fax: 202−775−0323 PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard Wiley Rein LLP 1776 K Street N.W. Washington, DC 20006−2304 202−719−7120 Fax: 202−719−7049 Email: thoward@wileyrein.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Elizabeth Walters (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Frances Charlton (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address) ATTORNEY TO BE NOTICED
Alex Ross Gulotta

Plaintiff
Patricia Knight A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated TERMINATED: 02/06/2013

(See above for address) TERMINATED: 03/04/2014 ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo (See above for address) ATTORNEY TO BE NOTICED
Angela A. Ciolfi (See above for address) ATTORNEY TO BE NOTICED
Brenda Erin Castaneda (See above for address) ATTORNEY TO BE NOTICED
Casey Shannon Nash (See above for address) ATTORNEY TO BE NOTICED
Deborah Maxine Golden (See above for address) TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristi Cahoon Kelly (See above for address) ATTORNEY TO BE NOTICED
Philip Jerome Fornaci (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Elizabeth Walters (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett

Plaintiff
Marguerite Richardson A prisoner residing at Fluvanna Correctional Center for Women,

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Frances Charlton (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address) ATTORNEY TO BE NOTICED
Alex Ross Gulotta (See above for address) TERMINATED: 03/04/2014 ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo (See above for address) ATTORNEY TO BE NOTICED
Angela A. Ciolfi (See above for address) ATTORNEY TO BE NOTICED
Brenda Erin Castaneda (See above for address) ATTORNEY TO BE NOTICED
Casey Shannon Nash (See above for address) ATTORNEY TO BE NOTICED
Deborah Maxine Golden (See above for address) TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristi Cahoon Kelly (See above for address) ATTORNEY TO BE NOTICED
Philip Jerome Fornaci (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Elizabeth Walters (See above for address) TERMINATED: 10/03/2017

Individually, and on behalf of all others similarly situated TERMINATED: 06/22/2015

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Frances Charlton (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address) ATTORNEY TO BE NOTICED
Alex Ross Gulotta (See above for address) TERMINATED: 03/04/2014 ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo (See above for address) ATTORNEY TO BE NOTICED
Angela A. Ciolfi (See above for address) ATTORNEY TO BE NOTICED
Brenda Erin Castaneda (See above for address) ATTORNEY TO BE NOTICED
Casey Shannon Nash (See above for address) ATTORNEY TO BE NOTICED
Deborah Maxine Golden (See above for address) TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Rebecca L. Scott A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated TERMINATED: 06/07/2018

Debra Desmore Corcoran Law Office of Debra D. Corcoran 11321 Church Road Henrico, VA 23233 804−270−0190 Fax: 804−270−0295 Email: lawyerddc@aol.com ATTORNEY TO BE NOTICED
Kristi Cahoon Kelly (See above for address) ATTORNEY TO BE NOTICED
Philip Jerome Fornaci (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adeola Oluremilekun Ogunkeyede (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amy Elizabeth Walters (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Wilson Hanes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer

Plaintiff
Belinda Gray A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated TERMINATED: 06/07/2018

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Frances Charlton (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address) ATTORNEY TO BE NOTICED
Alex Ross Gulotta (See above for address) TERMINATED: 03/04/2014 ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo (See above for address) ATTORNEY TO BE NOTICED
Angela A. Ciolfi (See above for address) ATTORNEY TO BE NOTICED
Brenda Erin Castaneda (See above for address) ATTORNEY TO BE NOTICED
Casey Shannon Nash (See above for address) ATTORNEY TO BE NOTICED
Deborah Maxine Golden (See above for address) TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristi Cahoon Kelly (See above for address) ATTORNEY TO BE NOTICED
Philip Jerome Fornaci (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adeola Oluremilekun Ogunkeyede (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Wilson Hanes (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Marie Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address) ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo (See above for address) ATTORNEY TO BE NOTICED
Angela A. Ciolfi (See above for address) ATTORNEY TO BE NOTICED
Brenda Erin Castaneda (See above for address) ATTORNEY TO BE NOTICED
Casey Shannon Nash (See above for address) ATTORNEY TO BE NOTICED
Deborah Maxine Golden Washington Lawyers Committee for Civil Rights and Urban Affairs 11 Dupont Cirlce NW, Suite 400 Washington, DC 20036 202−319−1000 Fax: 202−319−1010 Email: deborah_golden@washlaw.org TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Toni Hartlove A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated

Kristi Cahoon Kelly (See above for address) ATTORNEY TO BE NOTICED
Philip Jerome Fornaci Washington Lawyers Committee for Civil Rights and Urban Affairs 11 Dupont Cirlce NW, Suite 400 Washington, DC 20036 202−332−2697 Fax: 202−775−0323 PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard Wiley Rein LLP 1776 K Street N.W. Washington, DC 20006 202−719−7120 Fax: 202−719−7049 Email: thoward@wileyrein.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adeola Oluremilekun Ogunkeyede (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Wilson Hanes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Marie Ellis

Plaintiff
Karen Powell A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated TERMINATED: 06/07/2018

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address) ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo (See above for address) ATTORNEY TO BE NOTICED
Angela A. Ciolfi (See above for address) ATTORNEY TO BE NOTICED
Brenda Erin Castaneda (See above for address) ATTORNEY TO BE NOTICED
Casey Shannon Nash (See above for address) ATTORNEY TO BE NOTICED
Deborah Maxine Golden (See above for address) TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristi Cahoon Kelly (See above for address) ATTORNEY TO BE NOTICED
Philip Jerome Fornaci (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adeola Oluremilekun Ogunkeyede (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Wilson Hanes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address)

Plaintiff
Lucetia Robinson A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated

TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address) ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo (See above for address) ATTORNEY TO BE NOTICED
Angela A. Ciolfi (See above for address) ATTORNEY TO BE NOTICED
Brenda Erin Castaneda (See above for address) ATTORNEY TO BE NOTICED
Casey Shannon Nash (See above for address) ATTORNEY TO BE NOTICED
Deborah Maxine Golden (See above for address) TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristi Cahoon Kelly (See above for address) ATTORNEY TO BE NOTICED
Philip Jerome Fornaci (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adeola Oluremilekun Ogunkeyede (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

TERMINATED: 06/07/2018

Elizabeth Wilson Hanes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin Margaret Trodden (See above for address) TERMINATED: 10/03/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ivy Ann Finkenstadt (See above for address) TERMINATED: 11/01/2017 LEAD ATTORNEY
Kimberly Anne Rolla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Anthony Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Marie Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address) ATTORNEY TO BE NOTICED
Andrew Joseph Guzzo (See above for address) ATTORNEY TO BE NOTICED
Angela A. Ciolfi (See above for address) ATTORNEY TO BE NOTICED
Brenda Erin Castaneda (See above for address) ATTORNEY TO BE NOTICED
Casey Shannon Nash (See above for address) ATTORNEY TO BE NOTICED
Deborah Maxine Golden (See above for address) TERMINATED: 10/03/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristi Cahoon Kelly (See above for address)

Plaintiff Melissa Atkins
V. Movant Armor Correctional Health Services, Inc.
V. Defendant Harold W. Clarke Director, Virginia Department of Corrections

ATTORNEY TO BE NOTICED
Philip Jerome Fornaci (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore Augustus Howard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Angela A. Ciolfi Legal Aid Justice Center 1000 Preston Ave., Suite A Charlottesville, VA 22903 434−529−1810 Fax: 434−977−0558 Email: angela@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Erin Castaneda Legal Aid Justice Center 1000 Preston Ave., Suite A Charlottesville, VA 22903 434−977−0553 Fax: 977−0558 Email: brenda@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Marie Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Anne Rolla (See above for address) ATTORNEY TO BE NOTICED
represented by Edward J. McNelis , III Sands Anderson, PC 1111 East Main Street, Suite 2400 Richmond, VA 23218−1998 804−648−1636 Fax: 804−783−7291 Email: emcnelis@sandsanderson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward J. McNelis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Martin Muldowney Sands Anderson, PC 1111 East Main Street, Suite 2400 Richmond, VA 23218−1998 804−648−1636 Fax: 804−783−7291 Email: emuldowney@sandsanderson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons Office of the Attorney General of Virginia 202 North Ninth Street Richmond, VA 23219 804−786−0046 Fax: 804−786−4239 Email: jparsons@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Thomas Griggs Sands Anderson, PC 1111 East Main Street, Suite 2400 Richmond, VA 23218−1998 804−648−1998 Fax: 804−648−1636 Email: rgriggs@sandsanderson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane Marie Abato Office of the Attorney General − Richmond 202 North Ninth Street Richmond, VA 23219 804−786−8191 Fax: 804−786−4239 Email: dabato@oag.state.va.us ATTORNEY TO BE NOTICED
James Milburn Isaacs , Jr. Office of the Attorney General of Virginia 202 North Ninth Street Richmond, VA 23219 804−786−0030 Fax: 804−786−4239 Email: jisaacs@oag.state.va.us ATTORNEY TO BE NOTICED
John Chadwick Johnson Frith Anderson & Peake PC 29 Franklin Road, SW Roanoke, VA 24011 540−725−3363 Fax: 540−772−9167 Email: jjohnson@faplawfirm.com ATTORNEY TO BE NOTICED
Kate Elizabeth Dwyre Office of the Attorney General 202 North Ninth Street Richmond, VA 23219 804−786−5630 Fax: 804−786−4239

Defendant
A. David Robinson Chief of Corrections Operations, Virginia Department of Corrections

Email: kdwyre@oag.state.va.us ATTORNEY TO BE NOTICED
Katherine Cabell Londos Frith Anderson & Peake PC 29 Franklin Road, SW Roanoke, VA 24011 540−725−3367 Fax: 540−772−9167 Email: klondos@faplawfirm.com ATTORNEY TO BE NOTICED
Nathan Henry Schnetzler Frith Anderson & Peake PC 29 Franklin Road, SW Roanoke, VA 24011 540−725−3371 Fax: 540−772−9167 Email: nschnetzler@faplawfirm.com ATTORNEY TO BE NOTICED
Richard Carson Vorhis Office of the Attorney General 900 East Main Street Richmond, VA 23219 804−786−4805 Fax: 804−786−4239 Email: rvorhis@oag.state.va.us ATTORNEY TO BE NOTICED
represented by Edward J. McNelis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Martin Muldowney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Thomas Griggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane Marie Abato (See above for address) ATTORNEY TO BE NOTICED
James Milburn Isaacs , Jr. (See above for address) ATTORNEY TO BE NOTICED
John Chadwick Johnson (See above for address) ATTORNEY TO BE NOTICED
Kate Elizabeth Dwyre

Defendant
Frederick Schilling Director of Health Services, Virginia Department of Corrections TERMINATED: 06/07/2018

(See above for address) ATTORNEY TO BE NOTICED
Katherine Cabell Londos (See above for address) ATTORNEY TO BE NOTICED
Nathan Henry Schnetzler (See above for address) ATTORNEY TO BE NOTICED
Richard Carson Vorhis (See above for address) ATTORNEY TO BE NOTICED
represented by Edward J. McNelis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Martin Muldowney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Thomas Griggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane Marie Abato (See above for address) ATTORNEY TO BE NOTICED
James Milburn Isaacs , Jr. (See above for address) ATTORNEY TO BE NOTICED
John Chadwick Johnson (See above for address) ATTORNEY TO BE NOTICED
Kate Elizabeth Dwyre (See above for address) ATTORNEY TO BE NOTICED
Katherine Cabell Londos (See above for address) ATTORNEY TO BE NOTICED
Nathan Henry Schnetzler (See above for address) ATTORNEY TO BE NOTICED
Richard Carson Vorhis (See above for address) ATTORNEY TO BE NOTICED

Defendant Phyllis A. Baskerville Warden, Fluvanna Correctional Center for Women TERMINATED: 06/07/2018
Defendant Armor Correctional Health Services, Inc. TERMINATED: 10/04/2013
Defendant Paul C. Ohai M.D., Medical Director, Fluvanna

represented by Edward J. McNelis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Martin Muldowney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Thomas Griggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diane Marie Abato (See above for address) ATTORNEY TO BE NOTICED
James Milburn Isaacs , Jr. (See above for address) ATTORNEY TO BE NOTICED
John Chadwick Johnson (See above for address) ATTORNEY TO BE NOTICED
Kate Elizabeth Dwyre (See above for address) ATTORNEY TO BE NOTICED
Katherine Cabell Londos (See above for address) ATTORNEY TO BE NOTICED
Nathan Henry Schnetzler (See above for address) ATTORNEY TO BE NOTICED
Richard Carson Vorhis (See above for address) ATTORNEY TO BE NOTICED
represented by Edward J. McNelis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Martin Muldowney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Correctional Center for Women TERMINATED: 01/23/2019 also known as John/Jane Doe, M.D. TERMINATED: 01/23/2019 Defendant Corizon Health, Inc. TERMINATED: 07/31/2014
Defendant Dr. Mark Militana Medical Director, Fluvanna Correctional Center for Women TERMINATED: 05/21/2014

represented by Edward J. McNelis , III (See above for address) TERMINATED: 01/16/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Martin Muldowney (See above for address) TERMINATED: 01/16/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Wilburn McGuireWoods LLP 1750 Tysons Blvd., Suite 1800 Tysons Corner, VA 22102 703−712−5372 Fax: 703−712−5230 Email: jwilburn@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Elizabeth Miller McGuireWoods LLP 1750 Tysons Blvd., Suite 1800 Tysons Corner, VA 22102 703−712−5079 Fax: 712−5193 Email: amiller@mcguirewoods.com
Kevin James Daniel McGuireWoods LLP 1750 Tysons Blvd., Suite 1800 Tysons Corner, VA 22102 703−712−5386 Fax: 703−712−5237 Email: kdaniel@mcguirewoods.com ATTORNEY TO BE NOTICED
Phillip C. Chang MCGUIRE WOODS LLP 4TH FLOOR 2001 K STREET NW WASHINGTON, DC 20006−1040 202−857−1725 Fax: 202−828−2995 Email: pchang@mcguirewoods.com
represented by Amy Elizabeth Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward J. McNelis , III (See above for address) TERMINATED: 01/16/2014

Defendant Stephen Herrick
Defendant Eric Aldridge
Defendant Dr. Paul Targonski in his official capacity as Medical Director for the Fluvanna Correctional Center for Women

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Martin Muldowney (See above for address) TERMINATED: 01/16/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Wilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin James Daniel (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine Cabell Londos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Henry Schnetzler (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine Cabell Londos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Henry Schnetzler (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine Cabell Londos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Henry Schnetzler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/24/2012
07/25/2012 08/09/2012

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 350; Receipt #0423−1584619.), filed by Patricia Knight, Rebecca L. Scott, Cynthia B. Scott, Marguerite Richardson, Bobinette D. Fearce. 100 Day Notice due by 11/1/2012 120 Day Service due by 11/21/2012 (Attachments: # 1 Civil Cover Sheet)(mab)
2 Summons Issued as to Armor Correctional Health Services, Inc., Phyllis A. Baskerville, Harold W. Clarke, John/Jane Doe, M.D., A. David Robinson, Frederick Schilling.(mab) (Entered: 07/26/2012)
3 AFFIDAVIT of Service for Summons served on Dacia Jamison at Armor Correctional Health Services, Inc. on 7/31/12, filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(jcj)

08/09/2012 08/09/2012 08/09/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/23/2012 08/28/2012 09/05/2012
09/11/2012
09/11/2012
09/11/2012 09/11/2012

4 AFFIDAVIT of Service for summons served on Harold W. Clarke on 7/31/12, filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(jcj)
5 AFFIDAVIT of Service for summons served on A. David Robinson on 7/31/12, filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(jcj)
6 AFFIDAVIT of Service for summons served on Frederick Schilling on 7/31/12, filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(jcj)
7 NOTICE of Appearance by John Michael Parsons on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Parsons, John)
8 NOTICE of Appearance by James Milburn Isaacs, Jr on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Isaacs, James)
9 NOTICE of Appearance by Kate Elizabeth Dwyre on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Dwyre, Kate)
10 MOTION to Dismiss by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Parsons, John)
11 Brief / Memorandum in Support re 10 MOTION to Dismiss. filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Parsons, John)
12 ANSWER to 1 Complaint, and Affirmative Defenses by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.(Parsons, John)
13 NOTICE of Appearance by Elizabeth Martin Muldowney on behalf of Armor Correctional Health Services, Inc. (Muldowney, Elizabeth)
14 ANSWER to 1 Complaint, by Armor Correctional Health Services, Inc..(Muldowney, Elizabeth)
15 NOTICE of Appearance by Edward J. McNelis, III on behalf of Armor Correctional Health Services, Inc. (McNelis, Edward)
16 Magistrate Consent Notice to Parties. (mab)
17 PRETRIAL ORDER. CASE referred to Magistrate Judge B. Waugh Crigler. Signed by Judge Norman K. Moon on 8/28/12. (jcj)
18 Joint MOTION for Extension of Time to File Response/Reply as to 17 Pretrial Order, Order Referring Case to Magistrate Judge by Armor Correctional Health Services, Inc., Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to B. Waugh Crigler. (Parsons, John)
19 MOTION to Appear Pro Hac Vice for Theodore A. Howard by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to B. Waugh Crigler. (Attachments: # 1 Exhibit Certificate)(Castaneda, Brenda)
20 MOTION to Appear Pro Hac Vice for Deborah Golden by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to B. Waugh Crigler. (Attachments: # 1 Exhibit Certificate)(Castaneda, Brenda)
21 MOTION to Appear Pro Hac Vice for Philip Fornaci by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to B. Waugh Crigler. (Attachments: # 1 Exhibit Certificate)(Castaneda, Brenda)
22 ORDER granting 18 Joint MOTION for Extension of Time to File Response/Reply as Rule 26(f) conference conducted by 9/21/2012; contact District Judge's scheduling clerk to set a trial date. Signed by Magistrate Judge B. Waugh Crigler on 9/11/2012. (mab)

09/11/2012 09/11/2012 09/11/2012 09/11/2012 09/21/2012 09/21/2012 10/02/2012
10/03/2012
10/15/2012
12/11/2012 12/11/2012 01/22/2013 02/05/2013 02/05/2013 02/06/2013 02/06/2013 02/19/2013 02/20/2013 04/29/2013

23 ORDER granting 20 MOTION to Appear Pro Hac Vice for Deborah Golden. Signed by Magistrate Judge B. Waugh Crigler on 9/11/2012. (mab)
24 ORDER granting 21 MOTION to Appear Pro Hac Vice for Philip Fornaci. Signed by Magistrate Judge B. Waugh Crigler on 9/11/2012. (mab)
25 ORDER granting 19 MOTION to Appear Pro Hac Vice for Theodore A Howard. Signed by Magistrate Judge B. Waugh Crigler on 9/11/2012. (mab)
26 Brief / Memorandum in Opposition re 10 MOTION to Dismiss. filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
27 NOTICE of Hearing on Motion 10 MOTION to Dismiss : Motion Hearing set for 10/15/2012 01:00 PM in Charlottesville before Judge Norman K. Moon. Court Reporter Required. (hnw)
28 NOTICE of Hearing: Jury Trial set for 10/15−25/2013 09:30 AM in Charlottesville before Judge Norman K. Moon. Nine Days(hnw)
29 Rule 26(f) Agreed Written Plan by Defendants Armor Correctional Health Services, Inc., Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling, Plaintiffs Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
30 ORDER ADOPTING Rule 26(f) Agreed Written Plan 29 filed by Harold W. Clarke, Armor Correctional Health Services, Inc., Phyllis A. Baskerville, Bobinette D. Fearce, Cynthia B. Scott, Rebecca L. Scott, Marguerite Richardson, Frederick Schilling, Patricia Knight, A. David Robinson. Signed by Magistrate Judge B. Waugh Crigler on 10/3/2012. (mab)
32 Minute Entry for proceedings held before Judge Norman K. Moon: Motion Hearing held on 10/15/2012 re 10 MOTION to Dismiss filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson. (Court Reporter Sonia Ferris.) (hnw)
33 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 12/11/2012. (mab)
34 ORDER denying 10 Defendants' Motion to Dismiss. Signed by Judge Norman K. Moon on 12/11/2012. (mab)
35 MOTION to Amend/Correct Complaint by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to B. Waugh Crigler. (Attachments: # 1 Exhibit)(Castaneda, Brenda)
36 RESPONSE to Motion re 35 MOTION to Amend/Correct Complaint. filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Parsons, John)
37 RESPONSE to Motion re 35 MOTION to Amend/Correct Complaint. filed by Armor Correctional Health Services, Inc.. (Muldowney, Elizabeth)
38 ORDER granting 35 Motion to for leave to file amended complaint. Signed by Magistrate Judge B. Waugh Crigler on 2/6/13. (jcj)
39 AMENDED COMPLAINT against Armor Correctional Health Services, Inc., Phyllis A. Baskerville, Harold W. Clarke, John/Jane Doe, M.D., A. David Robinson, Frederick Schilling.(jcj)
40 Amended ANSWER to 39 Amended Complaint by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.(Parsons, John)
41 ANSWER to 39 Amended Complaint by Armor Correctional Health Services, Inc..(Muldowney, Elizabeth)
42 NOTICE of Appearance by Ivy Ann Finkenstadt on behalf of All Plaintiffs (Finkenstadt, Ivy)

04/30/2013 04/30/2013 05/17/2013 05/28/2013 05/31/2013 06/17/2013 06/26/2013 06/27/2013 07/02/2013 07/08/2013 07/12/2013
07/15/2013 07/15/2013
07/15/2013 07/15/2013

43 MOTION to Dismiss by Armor Correctional Health Services, Inc.. (Muldowney, Elizabeth)
44 Brief / Memorandum in Support re 43 MOTION to Dismiss . filed by Armor Correctional Health Services, Inc.. (Muldowney, Elizabeth)
45 Brief / Memorandum in Opposition re 43 MOTION to Dismiss Armor Correctional Health Services. filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1 and 2)(Castaneda, Brenda)
46 REPLY to Response to Motion re 43 MOTION to Dismiss . filed by Armor Correctional Health Services, Inc.. (Attachments: # 1 Exhibit 1, Affidavit of Kenneth M. Palombo, # 2 Exhibit A to Affidavit of Kenneth M. Palombo, # 3 Exhibit B to Affidavit of Kenneth M. Palombo)(Muldowney, Elizabeth)
47 NOTICE of Hearing on Motion 43 MOTION to Dismiss : Motion Hearing set for 6/17/2013 11:00 AM in Charlottesville before Judge Norman K. Moon. (hnw)
49 Minute Entry for proceedings held before Judge Norman K. Moon: Motion Hearing held on 6/17/2013 re 43 MOTION to Dismiss filed by Armor Correctional Health Services, Inc.. (Court Reporter Carol Jacobs.) (hnw)
50 MOTION to Amend/Correct complaint by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge B. Waugh Crigler. (Attachments: # 1 Proposed Amended Complaint)(Castaneda, Brenda)
51 MOTION to Vacate Scheduling Orders and Set New Trial Date by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1, 2, 3)(Castaneda, Brenda) . Motion referred to Judge B. Waugh Crigler Modified on 7/1/2013 (hnw).
52 NOTICE of Hearing on Motion 51 MOTION to Vacate Scheduling Orders and Set New Trial Date, 50 MOTION to Amend/Correct complaint : TELEPHONIC Motion Hearing set for 7/12/2013 11:15 AM in Charlottesville before Magistrate Judge B. Waugh Crigler. Parties will receive email notification with dial in instructions. (hnw)
53 Brief / Memorandum in Opposition re 50 MOTION to Amend/Correct complaint . filed by Armor Correctional Health Services, Inc.. (Muldowney, Elizabeth)
54 Minute Entry for proceedings held before Magistrate Judge B. Waugh Crigler: Telephone Conference held on 7/12/2013 Motion Hearing re 51 MOTION to Vacate Scheduling Orders and Set New Trial Date filed by Patricia Knight, Bobinette D. Fearce, Cynthia B. Scott, Rebecca L. Scott, Marguerite Richardson, 50 MOTION to Amend/Correct complaint filed by Patricia Knight, Bobinette D. Fearce, Cynthia B. Scott, Rebecca L. Scott, Marguerite Richardson, (Court Reporter Sonia Ferris.) (hnw) (Entered: 07/15/2013)
Notice of Correction re 54 Motion Hearing, Telephone Conference, deleted and dockted a second time to correct hearing date in docket text for clerical error. (hnw)
55 ORDER granting 50 Motion for leave to file Amended complaint; granting 51 Motion to vacate scheduling order and set new trial date. Discovery due by 3/1/2014. Disclosures and exchange of Exhibits List due by 5/1/2014. Plaintiffs Expert disclosure due by 10/31/2013. Defendants Expert disclosure due by 11/29/2013. Dispositive motions due by April 1, 2014. Jury Trial set for 5/12/2014 09:30 AM through 5/22/2014 in Charlottesville before Judge Norman K. Moon.. Signed by Magistrate Judge B. Waugh Crigler on 7/15/2013. (mab) Modified on 7/15/2013−Order vacated by 56 Order 7/15/2013 (mab).
56 Order to Vacate 55 Scheduling Order. Signed by Magistrate Judge B. Waugh Crigler on 7/15/2013. (mab)
57 SCHEDULING ORDER: Jury Trial set for 5/12/2014 09:30 AM through 5/22/2014 in Charlottesville before Judge Norman K. Moon. Discovery due by 3/1/2014. Discolure and Exchange of Exhibits due by 5/1/2014. Plaintiffs Expert Disclosure due by 10/31/2013. Defendants Expert Disclosure due by 11/29/2013. Initial Disclosure for new defendants due by 8/30/2013. Dispositive Motions due by 4/1/2014.. Signed by

07/15/2013
07/16/2013 07/19/2013 07/25/2013 08/09/2013 08/12/2013 08/28/2013 08/28/2013 08/28/2013 08/28/2013 08/28/2013 09/13/2013 09/23/2013
09/23/2013
09/30/2013 10/01/2013 10/02/2013 10/04/2013 10/04/2013 10/07/2013
10/11/2013

Magistrate Judge B. Waugh Crigler on 7/15/2013. (mab)
58 AMENDED COMPLAINT against Armor Correctional Health Services, Inc., Phyllis A. Baskerville, Harold W. Clarke, Paul C. Ohai, A. David Robinson, Frederick Schilling, Corizon Health, Inc., Mark Militana, filed by Rebecca L. Scott, Cynthia B. Scott, Marguerite Richardson, Bobinette D. Fearce.(mab)
59 NOTICE of Hearing: Jury Trial reset for 5/12−22/2014 09:30 AM in Charlottesville before Judge Norman K. Moon. (hnw)
61 Summons Issued as to Corizon Health, Inc., Mark Militana.(mab)
62 MOTION to Continue Trial Date by Armor Correctional Health Services, Inc..Motions referred to Judge B. Waugh Crigler. (McNelis, Edward)
63 NOTICE of Appearance by Mary Catherine Bauer on behalf of All Plaintiffs (Bauer, Mary)
64 RETURN of service of Summons on Complaint on 7/24/2013 upon Corizon Health, Inc. through registered agents CT Corporation(mab)
65 NOTICE of Appearance by Edward J. McNelis, III on behalf of Corizon Health, Inc., Mark Militana (McNelis, Edward)
66 NOTICE of Appearance by Elizabeth Martin Muldowney on behalf of Corizon Health, Inc., Mark Militana (Muldowney, Elizabeth)
67 ANSWER to 58 Amended Complaint, by Corizon Health, Inc., Mark Militana.(Muldowney, Elizabeth)
68 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Mark Militana. (Muldowney, Elizabeth)
69 Brief / Memorandum in Support re 68 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . filed by Mark Militana. (Muldowney, Elizabeth)
70 ORDER granting 62 Motion to Continue trial date. Signed by Magistrate Judge B. Waugh Crigler on 9/13/2013. (mab)
71 RESPONSE in Opposition re 68 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Dr. Mark Militana. filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
72 MOTION to Compel Discovery by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge B. Waugh Crigler. (Attachments: # 1 Memorandum of law, # 2 Exhibit A through D to memorandum)(Castaneda, Brenda) Modified on 10/21/2013 (hnw). Motion now referred to Judge Robert S. Ballou Modified on 11/14/2013 (hnw)Motion referred back to Hon. Norman K. Moon pursuant to order entered 10/23/2013.
73 REPLY to Response to Motion re 68 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . filed by Mark Militana. (Muldowney, Elizabeth)
74 ORDER REFERRING CASE to Magistrate Judge Robert S. BallouMotions referred to Robert S. Ballou.. Signed by Judge Norman K. Moon on 10/1/2013. (mab)
75 NOTICE of Hearing: Jury Trial RESET for 9/22/2014 09:30 AM in Charlottesville before Judge Norman K. Moon. TWO WEEKS(hnw)
76 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 10/4/2013. (mab)
77 ORDER granting 43 Motion to Dismiss defendant Armor Correctional Health, Inc.. Signed by Judge Norman K. Moon on 10/4/2013. (mab)
78 RESPONSE in Opposition re 72 MOTION to Compel Discovery . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Parsons, John)
79 Consent MOTION to Amend/Correct Scheduling Order by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.Motions

10/16/2013 10/23/2013 10/30/2013 10/30/2013
11/15/2013 11/15/2013 11/21/2013
11/25/2013 11/25/2013
12/16/2013
12/30/2013 01/06/2014 01/09/2014 01/14/2014 01/16/2014
02/03/2014 02/21/2014

referred to Judge Robert S. Ballou. (Attachments: # 1 Proposed order)(Castaneda, Brenda)
80 REPLY to Response to Motion re 72 MOTION to Compel Discovery . filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
81 Order Retaining Case for nondispositive pretrial motions and issues as a matter of judicial economy.. Signed by Judge Norman K. Moon on 10/23/2013. (mab)
82 NOTICE of Hearing on Motion 72 MOTION to Compel Discovery : Motion Hearing set for 11/21/2013 10:00 AM in Charlottesville before Judge Norman K. Moon. Court reporter required(hnw)
83 AMENDED SCHEDULING ORDER: Dispositive Motions Deadline due by 6/2/2014 Jury Trial reset for 9/22/2014 09:30 AM in Charlottesville before Judge Norman K. Moon. Discovery due by 5/1/2014 Deadline for hearing on Dispositive motions 7/30/2014. Rule 26(a)(3) Disclosures and exchange of exhibits due 9/2/2014. Deadline for completion of depositions in lieu of trial appearance − 9/2/2014. Signed by Judge Norman K. Moon on 10/30/2013. (mab)
84 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 11/15/2013. (mab)
85 ORDER denying 68 Motion to Dismiss for Failure to State a Claim. Signed by Judge Norman K. Moon on 11/15/2013. (mab)
86 Minute Entry for proceedings held before Judge Norman K. Moon: Motion Hearing held on 11/21/2013 re 72 MOTION to Compel Discovery filed by Patricia Knight, Bobinette D. Fearce, Cynthia B. Scott, Rebecca L. Scott, Marguerite Richardson. (Court Reporter Sonia Ferris.) (hnw) (Entered: 11/22/2013)
88 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 11/25/13. (hnw)
89 ORDER granting 72 Motion to Compel discovery. Furthermore, Plaintiff's request, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), to recover reasonable expenses and attorney's fees incurred in the preparation and filing of the motion to compel is Granted. Signed by Judge Norman K. Moon on 11/25/13. (hnw)
90 Brief / Memorandum in Support re 72 MOTION to Compel Discovery Petition for Attorneys' Fees. filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1 and 2)(Castaneda, Brenda) Modified on 4/9/2014 (hnw).
91 Response re 90 Brief / Memorandum in Support, Response to Plaintiff's Petition Regarding Recoverable Attorneys' Fees. filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Parsons, John)
92 PROTECTIVE ORDER. Signed by Judge Norman K. Moon on 1/6/14. (hnw)
93 Response re 91 Response to Plaintiffs' Petition regarding Recoverable Attorneys' Fees. filed by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Finkenstadt, Ivy)
94 MOTION to Substitute Attorney by Corizon Health, Inc., Mark Militana. (Attachments: # 1 Text of Proposed Order Allowing Substitution of Counsel)(Daniel, Kevin)
95 ORDER granting 94 Motion to Substitute Attorney. Added attorney John David Wilburn and Kevin J. Daniel for Corizon Health, Inc. and for Mark Militana. Attorney Edward J. McNelis, III and Elizabeth Martin Muldowney terminated. Signed by Judge Norman K. Moon on 1/16/14. (jcj)
96 MOTION to Withdraw as Attorney by Alex R. Gulotta by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
97 NOTICE of Appearance by Amy Elizabeth Miller on behalf of Corizon Health, Inc. (Miller, Amy)

02/21/2014 03/04/2014 03/07/2014 03/13/2014 03/14/2014 03/18/2014 03/26/2014 03/31/2014
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98 NOTICE of Appearance by Phillip C. Chang on behalf of Corizon Health, Inc. (Chang, Phillip)
99 ORDER granting 96 Motion to Withdraw as Attorney. Attorney Alex Ross Gulotta terminated. Signed by Judge Norman K. Moon on 3/4/14. (hnw)
100 Joint MOTION to Take Deposition from Cynthia Scott, Bobinette Fearce, Marguerite Richardson and Rebecca Scott by Corizon Health, Inc., Mark Militana. (Attachments: # 1 Text of Proposed Order)(Daniel, Kevin)
101 NOTICE by Corizon Health, Inc., Mark Militana re 100 Joint MOTION to Take Deposition from Cynthia Scott, Bobinette Fearce, Marguerite Richardson and Rebecca Scott (Daniel, Kevin)
102 ORDER granting 100 Motion to Take Deposition from Cynthia B. Scott, Bobinette Fearce, Marguerite Richardson, and Rebecca Scott all Virginia Department of Corrections inmates. Signed by Judge Norman K. Moon on 3/14/2014. (mab)
103 NOTICE of Appearance by Erin Margaret Trodden on behalf of All Plaintiffs (Trodden, Erin)
104 Consent MOTION to Vacate Scheduling Order and Set New Trial Date by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
105 AMENDED SCHEDULING ORDER:( Dispositive Motions Deadline due by 9/2/2014, Jury Trial RESET for 12/1/2014 09:30 AM in Charlottesville for Two Weeks before Judge Norman K. Moon., Discovery due by 7/1/2014.) and further such deadlines as set forth in said order, Motions granted 104 Consent MOTION to Vacate Scheduling Order and Set New Trial Date filed by Bobinette D. Fearce, Cynthia B. Scott, Rebecca L. Scott, Marguerite Richardson.. Signed by Judge Norman K. Moon on 3/31/14. (hnw)
106 Subpoena issued to UVA Board of visitors, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(mab)
107 NOTICE to Take Deposition of Armor Correctional Health Services by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Affidavit service)(Castaneda, Brenda)
108 RETURN of service of service of subpoena duces tecum on 04/07/2014 upon Susan Harris, University of Virginia Board of Visitors(Castaneda, Brenda)
109 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 4/15/14. (jcj)
110 ORDER granting 90 Motion for Attorney Fees in the amount of $15,980.00. Signed by Judge Norman K. Moon on 4/15/14. (jcj)
111 Consent MOTION to Dismiss Defendant Mark Militana, M.D. by Corizon Health, Inc., Mark Militana. (Attachments: # 1 Text of Proposed Order)(Miller, Amy)
112 Subpoena issued to University of Virgina medical center, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
113 RETURN of service of Plaintiffs to University of Virginia Medical Center on 05/06/2014 upon Susan Harris, University of Virginia Board of Visitors(Castaneda, Brenda)
114 ORDER granting 111 Motion to Dismiss Dr. Mark Militana from this action with prejudice and further such relief as set forth in said order. Signed by Judge Norman K. Moon on 5/21/14. (hnw)
115 NOTICE of Appearance by Angela A. Ciolfi on behalf of All Plaintiffs (Ciolfi, Angela)
116 Subpoena issued to Laurie Carter, VCU Board of Visitors, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)

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117 Emergency MOTION to Stay All Proceedings by Corizon Health, Inc.. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Chang, Phillip)
118 Brief / Memorandum in Support re 117 Emergency MOTION to Stay All Proceedings . filed by Corizon Health, Inc.. (Attachments: # 1 Exhibit)(Chang, Phillip)
119 Subpoena issued to Susan G. Harris, UVa Board of Visitors, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
120 RETURN of service of Subpoena Duces Tecum, UVa Board of Visitors on 06/12/2014 upon Susan Harris, University of Virginia Board of Visitors(Castaneda, Brenda)
121 Brief / Memorandum in Opposition re 117 Emergency MOTION to Stay All Proceedings . filed by Bobinette D. Fearce. (Attachments: # 1 Exhibit)(Trodden, Erin)
122 Subpoena issued to Laurie Carter, VCU Board of Visitors, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
123 REPLY to Response to Motion re 117 Emergency MOTION to Stay All Proceedings . filed by Corizon Health, Inc.. (Chang, Phillip)
124 RETURN of service of Subpoena Duces Tecum, VCU Board of Visitors on June 9, 2014 upon Elaine Abernathy(Castaneda, Brenda)
125 RETURN of service of Subpoena Duces Tecum, VCU Board of Visitors on June 24, 2014 upon Elaine Abernathy(Castaneda, Brenda)
126 MOTION to Dismiss Corizon by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
127 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 7/28/2014. (mab)
128 ORDER denying 117 Emergency Motion to Stay Litigation Pending Joinder of Necessary Party. Signed by Judge Norman K. Moon on 7/28/2014. (mab)
129 ORDER granting Unopposed 126 Motion to Dismiss Defendant Corizon Health, Inc.; DISMISSING Corizon Health, Inc. from this action without any award of costs. Signed by Judge Norman K. Moon on 7/31/2014. (mab)
130 MOTION for Leave to File Excess Pages for Class Certification Brief by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
131 MOTION to Certify Class by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
132 Brief / Memorandum in Support re 131 MOTION to Certify Class . filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54)(Castaneda, Brenda)
133 ORAL ORDER granting 130 Motion for Leave to File Excess Pages. Entered by Judge Norman K. Moon on 8/18/14. (hnw)
134 RESPONSE in Opposition re 131 MOTION to Certify Class . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit I − Excerpts from Frederick Schilling Deposition Transcript, # 2 Exhibit II − Contract with Prison Health Services, # 3 Exhibit III − Contract with Armor Correctional Health Services, # 4 Exhibit IV − Contract with Corizon, Inc, # 5 Exhibit

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V − Excerpts from Tammy Brown Deposition Transcript, # 6 Exhibit VI − Excerpts from Catherine Thomas Deposition Transcript, # 7 Exhibit VII − Excerpts from Catherine Thomas Deposition Transcript)(Parsons, John)
135 MOTION for Summary Judgment by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Parsons, John)
136 Brief / Memorandum in Support re 135 MOTION for Summary Judgment . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit I − Affidavit of T. Swann, # 2 Exhibit II − Portions of Schilling's Deposition Transcript, March 25, 2014, # 3 Exhibit III − Portions of Robinson's Deposition Transcript, June 27, 2014, # 4 Exhibit IV − Contract between VDOC and PHS, DOC 05−024−PHS, # 5 Exhibit V − Contract between VDOC and Armor, DOC 05−024−Armor, # 6 Exhibit VI − Contract between VDOC and Corizon, DOC 13−003−COMP, # 7 Exhibit VII − Portions of Deposition Transcript of Tammy Brown, June 13, 2014, # 8 Exhibit VIII − Rule 26(a)(2) Expert Witness Disclosure and Expert Witness Report, # 9 Exhibit IX − Portions of Deposition Transcript of Catherine Thomas, June 13, 2014, # 10 Exhibit X − Portions of Deposition Transcript of Mark Amonette, June 27, 2014)(Parsons, John)
137 MOTION for Summary Judgment by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
138 Brief / Memorandum in Support re 137 MOTION for Summary Judgment . filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
139 Brief / Memorandum in Support re 137 MOTION for Summary Judgment Statement of Undisputed Material Facts. filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40)(Castaneda, Brenda)
140 Consent MOTION for Extension of Time to File Motion to Exclude Expert Testimony by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
141 Oral ORDER granting 140 Motion for Extension of Time to File Document. Signed by Judge Norman K. Moon on 9/4/2014. (JCMcK)
142 REPLY to Response to Motion re 131 MOTION to Certify Class . filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
143 NOTICE of Hearing on Motion 131 MOTION to Certify Class : Motion Hearing set for 9/19/2014 12:00 PM in Charlottesville before Judge Norman K. Moon. (hnw)
144 NOTICE of Hearing on Motion 137 MOTION for Summary Judgment , 135 MOTION for Summary Judgment : Motion Hearing set for 10/17/2014 02:00 PM in Charlottesville before Judge Norman K. Moon. (hnw)
145 Minute Entry for proceedings held before Judge Norman K. Moon: Motion Hearing held on 9/19/2014 re 131 MOTION to Certify Class filed by Bobinette D. Fearce, Cynthia B. Scott, Rebecca L. Scott, Marguerite Richardson. Order will issue (Court Reporter Julia Bammel, Cavalier Reporting ( Sworn).) (hnw)
146 Subpoena issued to Dr. Erika Ramsdale, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
Notice of Correction: DE 148 Deleted by clerk at the request of the attorney. When document was filed on 9/22/2014, exhibits were inadvertantly not included in the entry. Attorney will refile the exact same motion with attached exhibits. (kab)

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148 MOTION for Leave to File Supplement Rule 26(A)(2) Disclosure of Expert Testimony by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit I − Plaintiff's Expert Disclosure − Griefinger, # 2 Exhibit II − Plaintiff's Expert Disclosure − Angelone, # 3 Exhibit III − Plaintiff's Expert Disclosure − Zawitz, Ofogh, Malloy)(Parsons, John)
149 RESPONSE in Opposition re 137 MOTION for Summary Judgment . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit I − Portions of Deposition Transcript of Tammy Brown)(Parsons, John)
150 MOTION for Leave to File Brief in Opposition Exceeding 25 Pages by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
151 RESPONSE in Opposition re 135 MOTION for Summary Judgment by VDOC Defendants. filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
152 RESPONSE in Opposition re 135 MOTION for Summary Judgment Counterstatement of Disputed Facts and Supplemental Statement of Facts. filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1 − C Scott Declaration 9−25−14, # 2 Exhibit 2 − B Fearce Declaration 9−22−14, # 3 Exhibit 3 − M. Richardson Declaration 9−18−14, # 4 Exhibit 4 − R Scott Declaration 9−18−14, # 5 Exhibit 5 − grievance chart, # 6 Exhibit 6 − letter of A Turner 6−13−12, # 7 Exhibit 7 − letter of A Turner 6−26−12, # 8 Exhibit 8 − demand letter 7−13−12, # 9 Exhibit 9 − portions of Robinson deposition, # 10 Exhibit 10 − portions of Schilling deposition, # 11 Exhibit 11 − portions of Thomas deposition, # 12 Exhibit 12 − contract monitor emails and reports, # 13 Exhibit 13 − portions of Brown deposition, # 14 Exhibit 14 − Greifinger report of 4−25−14, # 15 Exhibit 15 − portions of Amonette deposition, # 16 Exhibit 16 − portions of Teal deposition, # 17 Exhibit 17 − portions of Thompson deposition, # 18 Exhibit 18 − portions of Fearce deposition, # 19 Exhibit 19 − portions of Richardson deposition, # 20 Exhibit 20 − portions of MacDonald deposition, # 21 Exhibit 21 − B Fearce declaration of 8−5−14, # 22 Exhibit 22 − M Richardson declaration of 8−1−14, # 23 Exhibit 23 − portions of Angelone deposition, # 24 Exhibit 24 − Angelone article, # 25 Exhibit 25 − DOP 866−1, # 26 Exhibit 26 − C Scott grievance summary records, # 27 Exhibit 27 − B Fearce grievance summary records, # 28 Exhibit 28 − M Richardson grievance summary records, # 29 Exhibit 29 − R Scott grievance summary records)(Castaneda, Brenda)
153 ORAL ORDER granting 150 Plaintiffs' Motion for Leave to File Brief in Opposition Exceeding 25 Pages. Signed by Judge Norman K. Moon on 9/30/2014.(jm)
154 RETURN of service of Subpoena for deposition on 9−30−2014 upon Dr. Erika Ramsdale(Castaneda, Brenda)
155 RESPONSE in Opposition re 148 MOTION for Leave to File Supplement Rule 26(A)(2) Disclosure of Expert Testimony . filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1, 2 and 3)(Castaneda, Brenda)
156 REPLY to Response to Motion re 137 MOTION for Summary Judgment . filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1 − report of Dr. Greifinger of 5−14−14)(Castaneda, Brenda)
157 Response re 152 Response in Opposition to Motion,,,,,, . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Parsons, John)
158 MOTION to Strike the Defendants' Jury Demand by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Ciolfi, Angela)
159 Brief / Memorandum in Support re 158 MOTION to Strike the Defendants' Jury Demand . filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Ciolfi, Angela)

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160 NOTICE of Hearing by Attorney for Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling Motion for Leave to Supplement Rule 26(a)(2) Disclosure of Expert Testimony to be held on 10/17/2014, at 2:00 p.m., at U.S. District Court, Charlottesville, Va, before Judge Moon. Confirmed with U.S. Clerk's Office. (Parsons, John)
162 Minute Entry for proceedings held before Judge Norman K. Moon: Motion Hearing held on 10/17/2014 re 137 MOTION for Summary Judgment filed by Bobinette D. Fearce, Cynthia B. Scott, Rebecca L. Scott, Marguerite Richardson, 135 MOTION for Summary Judgment filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson, 148 MOTION for Leave to File Supplement Rule 26(A)(2) Disclosure of Expert Testimony filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson. (Court Reporter Carol Jacobs.) (hnw)
163 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 10/22/14. (hnw)
164 ORDER denying 148 Motion for Leave to supplement Rule 26(a)(2) disclosure of expert testimony. Signed by Judge Norman K. Moon on 10/22/14. (hnw)
165 ORDER Granting 158 Motion to Strike Defendan'ts Jury Demand. Signed by Judge Norman K. Moon on 10/22/14. (hnw)
166 Notice Rescheduling Hearing previously set for JURY TRIAL for December 1, 2014 at 9:30 a.m. for two weeks before Judge Norman K. Moon in Charlottesville:BENCH TRIAL set for 12/1/2014 09:30 AM for two weeks in Charlottesville before Judge Norman K. Moon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (hnw)
167 NOTICE by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling Withdrawal Of Jury Demand (Parsons, John)
168 MOTION to Withdraw as Attorney (Philip Fornaci) by Bobinette D. Fearce, Patricia Knight, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Golden, Deborah)
169 ORAL ORDER. The parties contacted the court to inquire whether demonstrative exhibits must be disclosed at the same time as other pretrial disclosures under the pretrial scheduling order. The court believes that demonstrative exhibits should be disclosed at the same time as pretrial disclosures; however, given that the deadline for pretrial disclosures is November 3, 2014, the court will extend the deadline to disclose demonstrative exhibits to November 10, 2014. Entered by Judge Norman K. Moon on 10/28/14. (hnw)
170 MOTION to Take Deposition from Debbie Daley by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
171 Consent MOTION for Extension of Time to File Rule 26 (a)(3) Disclosures by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
172 ORAL ORDER granting 168 Motion to Withdraw as Attorney. Attorney Philip Jerome Fornaci terminated. Signed by Judge Norman K. Moon on 11/03/2014. (jm)
173 ORAL ORDER granting 171 Motion for Extension of Time to File Document. Signed by Judge Norman K. Moon on 11/03/2014. (jm)
174 ORDER granting 170 Motion to Take Deposition from Debbie Daley on November 6, 2014. Signed by Judge Norman K. Moon on 11/4/14. (hnw)
175 Witness List by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.(Parsons, John)
176 Exhibit List by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling..(Parsons, John)
177 Witness List by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)

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178 Exhibit List by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott..(Castaneda, Brenda)
179 MOTION in Limine by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Ciolfi, Angela)
180 NOTICE of Appearance by Mary Frances Charlton on behalf of All Plaintiffs (Charlton, Mary)
181 Subpoena issued to Custodian of records, MCV, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
182 Subpoena issued to Scotty Frye, or UVA custodian of records, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
183 Subpoena issued to Dr. Erika Ramsdale, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
184 Subpoena issued to Bonnie Sluss, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
185 Subpoena issued to Dr. Denise Young, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
186 NOTICE of Appearance by Kimberly Anne Rolla on behalf of All Plaintiffs (Rolla, Kimberly)
187 NOTICE of Appearance by Amy Elizabeth Walters on behalf of All Plaintiffs (Walters, Amy)
188 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 11/20/14. (hnw)
189 ORDER granting 131 Motion to Certify Class. Signed by Judge Norman K. Moon on 11/20/14. (hnw)
190 Exhibit List Amended by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott..(Castaneda, Brenda)
191 RETURN of service of Scotty Frye, or UVA custodian of records on 11−19−2014 upon Melody Willis, HIS analyst, UVA medical center(Castaneda, Brenda)
192 RETURN of service of Dr. Denise Young on 11−19−2014 upon Melissa Barker, RN/ Asst Nurse Manager, UVA medical center(Castaneda, Brenda)
193 RETURN of service of Dr. Erika Ramsdale on 11−19−2014 upon Janet Tillage, Administrative Assistant, UVA medical center(Castaneda, Brenda)
194 Petition for Writ of Habeas Corpus ad testificandum by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Text of Proposed Order for Issuance of Writ ad Testificandum, # 2 Text of Proposed Order Writ ad Testificandum)(Ciolfi, Angela)
195 Petition for Writ of Habeas Corpus ad testificandum to Warden of VCCW by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Text of Proposed Order for Issuance of Writ ad Testificandum, # 2 Text of Proposed Order Writ ad Testificandum)(Ciolfi, Angela)
196 Subpoena issued to Trudy Freas, FCCW records manager, filed by Bobinette D. Fearce, Marguerite Richardson, Cynthia B. Scott, Rebecca L. Scott.(Castaneda, Brenda)
197 ORDER For Issuance of Writ of Habeas Corpus ad Testificandum as to prisoners listed. Signed by Judge Norman K. Moon on 11/24/14. (hnw)
198 ORDER granting 194 Motion for Writ of Habeas Corpus ad testificandum/ Writ of Habeas Corpus Ad Testificandum as to prisoners identified presently detained in the Fluvanna Correctional Center for Woman to testifly at trial scheduled to Commence December 1, 2014. Signed by Judge Norman K. Moon on 11/24/14. (hnw)

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199 ORDER for Issuance of Writ of Habeas Corpus Ad Testificandum as to Lisa George. Signed by Judge Norman K. Moon on 11/24/14. (hnw)
200 ORDER granting 195 Motion for Writ of Habeas Corpus ad testificandum/Writ of Habeas Corpus Ad Testificandum as to Lisa George to testify at trial on December 3, 2014 at 1:00 pm. Signed by Judge Norman K. Moon on 11/24/14. (hnw)
201 MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 11/25/14. (hnw)
202 ORDER Denying Defendants' 135 Motion for Summary Judgment and Granting Plaintiffs' 137 Motion for Partial Summary Judgment. Signed by Judge Norman K. Moon on 11/25/14. (hnw)
203 Notice of Cancellation of December 1 through 11, 2014 Bench Trial, the parties having represented to the Court this matter has settled in principle (hnw)
204 NOTICE of Settlement Joint Notice of Settlement in Principle by Phyllis A. Baskerville, Harold W. Clarke, Bobinette D. Fearce, Marguerite Richardson, A. David Robinson, Frederick Schilling, Cynthia B. Scott, Rebecca L. Scott (Parsons, John)
205 Order to Vacate 200 Order on Motion for Writ of Habeas Corpus ad testificandum, 199 Order directing the Clerk to issue Writ, 198 Order on Motion for Writ of Habeas Corpus ad testificandum, 197 Order directing the Clerk to issue Writ. Signed by Judge Norman K. Moon on 11/26/14. (hnw)
206 RETURN of service of Subpoena for Custodian of records, MCV on 11/19/2014 upon K. Smith, HIM, MCV records(Castaneda, Brenda)
207 MOTION to Withdraw as Plaintiff by Bobinette D. Fearce. (Castaneda, Brenda)
208 ORDER granting 207 MOTION to Withdraw Bobinette Fearce as Plaintiff. Signed by Judge Norman K. Moon on 3/31/2015. (mab)
209 STATUS REPORT by Phyllis A. Baskerville, Harold W. Clarke, Paul C. Ohai, Marguerite Richardson, A. David Robinson, Frederick Schilling, Cynthia B. Scott, Rebecca L. Scott (Castaneda, Brenda)
210 MOTION to Withdraw name as plaintiff from this civil action without prejudice by Marguerite Richardson. (Attachments: # 1 Attached copy of letter sent to counsel) This copy is available for viewing in the clerk's office due to poor quality of copy sent with motion and unsuccessful attempts to make it legible.(mab)
212 NOTICE of Appearance by Debra Desmore Corcoran on behalf of Marguerite Richardson (Corcoran, Debra)
213 Notice of Correction re 211 Notice of Appearance. Changed viewing restriction of Document 211 due to attorney attaching incorrect/deficient pdf; only viewable by court personnel. Document correctly filed at Document 212 . (hnw)
214 ORDER granting 210 Letter Motion to Withdraw as Plaintiff in this case by Marguerite Richardson. Signed by Judge Norman K. Moon on 6/22/2015. (mab)
215 Consent MOTION to Substitute Party by Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
216 Brief / Memorandum in Support re 215 Consent MOTION to Substitute Party . filed by Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1)(Castaneda, Brenda)
217 ORAL ORDER granting 215 Motion to Substitute Party. Belinda Gray, Toni Hartlove, Karen Powell and Lucetia Robinson added.. Entered by Judge Norman K. Moon on 7/29/15. (hnw)
218 STATUS REPORT Second Joint Report by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott (Castaneda, Brenda)
219 NOTICE of Appearance by Richard Carson Vorhis on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Vorhis, Richard)

09/15/2015 09/15/2015
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220 Consent MOTION to Approve Consent Judgment by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott. (Castaneda, Brenda)
221 Brief / Memorandum in Support re 220 Consent MOTION to Approve Consent Judgment for Preliminary Approval. filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott. (Attachments: # 1 Exhibit 1 − settlement agreement and appendices A, B, C, # 2 Exhibit 2 − proposed class notice, # 3 Exhibit 3 − proposed consent order)(Castaneda, Brenda)
222 ORDER granting 220 Consent Motion for Preliminary Approval of Class Settlement. Signed by Judge Norman K. Moon on 9/16/2015. (Attachments: # 1 Notice of proposed settlement) (mab)
223 NOTICE by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Vorhis, Richard)
224 NOTICE by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling re 222 Order on Motion to Approve Consent Judgment (Attachments: # 1 Affidavit of Tammy C. Brown)(Vorhis, Richard)
225 NOTICE of Hearing: (CR) Fairness Hearing set for 11/9/2015 11:00 AM in Charlottesville before Judge Norman K. Moon. Hearing set for all day. (hnw)
226 MOTION for Attorney Fees by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
227 Brief / Memorandum in Support re 226 MOTION for Attorney Fees . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
228 AFFIDAVIT in Support re 226 MOTION for Attorney Fees . filed by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1 − Wiley Rein DBR, # 2 Exhibit 2 − Laffey Matrix, # 3 Exhibit 3 − USAO Matrix, # 4 Exhibit 4 − budget documents, # 5 Exhibit 5a − LAJC part 1, # 6 Exhibit 5b −LAJC part 2, # 7 Exhibit 5 c − LAJC part 3, # 8 Exhibit 6 − Golden, # 9 Exhibit 7 − Glasberg, # 10 Exhibit 8 − Fathi, # 11 Exhibit 9 − spencer, # 12 Exhibit 10 − settlement outline, # 13 Exhibit 11 − correspondence)(Castaneda, Brenda)
229 MOTION for Leave to File Excess Pages for Fee Petition by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Castaneda, Brenda)
230 ORDER granting 229 Motion for Leave to File Excess Pages. Signed by Judge Norman K. Moon on 10/20/15. (jcj)
231 Written Comment/Objections re 222 Order Granting Consent Motion for Preliminary Approval of Class Settlement (hnw)
232 Consent MOTION for Extension of Time to File Supporting Documents to Petition for Fees by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott. (Castaneda, Brenda)
233 ORDER granting 232 Motion for Extension of Time to File certain evidence in support of their motion for attorneys' fees. Signed by Judge Norman K. Moon on 10/26/15. (jcj)
234 Written Comments/Objections re 222 Order on Motion to Approve Consent Judgment (Attachments: # 1 Attachment #1, # 2 Attachment #2)(mab)
235 MOTION for Extension of Time to File Response/Reply as to 226 MOTION for Attorney Fees by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Parsons, John)
236 MOTION for Writ ad Testificandum by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott. (Attachments: # 1 Text of Proposed Order)(Castaneda, Brenda)

11/02/2015 11/02/2015 11/03/2015
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237 Objections/Written Statement re 222 Order on Motion to Approve Consent Judgment (Attachments: # 1 Envelope − Postmarked October 29, 2015)(mab)
238 ORDER granting 235 Motion for Extension of Time to File Response to 226 Motion for Attorneys' Fees Responses due twenty−one (21) days from the date of this order. Signed by Judge Norman K. Moon on 11/2/2015. (mab)
239 ORDER granting 236 Motion for Writ ad Testificandum. The Warden of the FCCW, in conjunction with the U.S. Marshal is commanded that the five plaintiffs/class members/prisoners: Cynthia Scott; Lucretia Robinson; Toni Hartlove; Karen Powell, and Belinda Gray be produced for the hearing on November 9, 2015 at 11:00 am at the U.S. District Court in Charlottesville, Virginia. Signed by Judge Norman K. Moon on 11/3/2015. (mab)
240 ORDER Requesting the Warden of Fluvanna Correctional Center for Women to transport the following plaintiffs: CYNTHIA SCOTT, #1099736; LUCRETIA ROBINSON, #1072546; TONI HARLOVE, #1050624; KAREN POWELL, #1152643 and BELINDA GRAY, #1061861 for a Fairness hearing on Monday, November 9, 2015 at 11:00 am to the United States District Court in Charlottesville Virginia re 222 Order on Motion to Approve Consent Judgment. Order 239 entered earlier on this date is vacated.. Signed by Judge Norman K. Moon on 11/3/2015. (mab)
242 Minute Entry for Fairness Hearing held before Judge Norman K. Moon: Court Hearing held on 11/9/2015. See Exhibit list filed 12/14/15 (Court Reporter Carol Jacobs.) (hnw)
243 TRANSCRIPT REQUEST (14 calendar days Service) by Cynthia B. Scott for Fairness Hearing held on 11/9/2015 reported by Court Reporter Carol Jacobs before Judge Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Ciolfi, Angela)
244 Financial arrangements made (14 calendar days Service) re 243 Transcript Request, Transcript due by 12/1/2015. (cj)
245 Written Statements/Comments stating Objections re 222 Order on Motion to Approve Consent Judgment (mab)
246 Letter to Judge Norman K Moon by Karen Powell (mab) (Entered: 11/19/2015)
247 ORDER, pursuant to the Fairness hearing of November 8, 2015, for parties to file proposed findings of fact and conclusions of law addressing whether the Court should grant final approval of the proposed settlement. Such proposed findings and conclusions must be filed on or before December 22, 2015. Signed by Judge Norman K. Moon on 11/20/15. (jcj)
248 MOTION to Stay Deadline To Respond To Fee Petition (Unopposed) by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Vorhis, Richard)
249 ORDER granting 248 Motion to Stay briefing schedule on Plaintiffs' motion for attorneys' fees. The parties are Ordered to file a joint status report on the fee issue on or before thirty (30) days from this Order. If Defendants receive approval from government officials before that deadline, they should so notify the Court. Signed by Judge Norman K. Moon on 11/24/15. (hnw)
250 Written Statements/Comments in re: Objections re 222 Order on Motion to Approve Consent Judgment (sent by Commit B. D. Williams 1459553) (mab)
251 TRANSCRIPT of Proceedings: Fairness Hearing held on November 9, 2015 before Judge Norman K. Moon. Court Reporter/Transcriber Carol Jacobs, Telephone number carolj@vawd.uscourts.gov. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction

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Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/3/2016. (cj)
252 Consent MOTION to Withdraw Exhibits by Cynthia B. Scott. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw Exhibits)(Ciolfi, Angela)
253 ORDER granting 252 Motion to Withdraw from the record Exhibits 2 and 3 that were submitted during the November 9, 2015 fairness hearing. Signed by Judge Norman K. Moon on 12/14/2015. (mab)
254 Exhibit List by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.. (Attachments: # 1 Exhibit 1)(hnw)
255 Proposed Findings of Fact by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott.(Castaneda, Brenda)
256 STATUS REPORT On Settlement of Plaintiffs' Costs and Attorneys' Fees by Phyllis A. Baskerville, Harold W. Clarke, Belinda Gray, Toni Hartlove, Karen Powell, A. David Robinson, Lucetia Robinson, Frederick Schilling, Cynthia B. Scott (Parsons, John)
257 ORDER regarding Status Report, 256 . The parties are ORDERED to file a joint status report on the fee issue on or before thirty (30) days from the date of this order. Signed by Judge Norman K. Moon on 12/30/15. (jcj)
258 STATUS REPORT On Settlement of Plaintiffs' Costs and Attorneys' Fees by Phyllis A. Baskerville, Harold W. Clarke, Belinda Gray, Toni Hartlove, Karen Powell, A. David Robinson, Lucetia Robinson, Frederick Schilling, Cynthia B. Scott (Parsons, John)
259 Proposed Findings of Fact by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott.(Castaneda, Brenda)
260 STIPULATION of Proposed Final Order by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott (Castaneda, Brenda)
261 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Norman K. Moon on 2/5/2016. (mab)
262 FINAL JUDGMENT ORDER the final approval of the Settlement Agreement is GRANTED and the Settlement Agreement is deemed implemented as of the date of entry of this order; MOTION for Attorney Fees 226 filed by Lucetia Robinson, Karen Powell, Cynthia B. Scott, Toni Hartlove, Belinda Gray, Rebecca L. Scott is GRANTED in part. Plaintiffs are awarded one million five hundred thousand dollars ($1,500,000.00) in attorneys fees and costs; as contemplated by the Settlement Agreement, the Court shall retain jurisdiction for purposes of ensuring the implementation of the Settlement Agreement and shall preside over such further proceedings as may be necessary or appropriate to enforce its terms and conditions. The Clerk of the Court is directed to strike this matter from the active docket of the Court. Signed by Judge Norman K. Moon on 2/5/2016. (mab)
263 Letter to counsel regarding the destruction of exhibit #1( Exhibits #2, and #3 having been withdrawn). (hnw)
264 Exhibits referenced at docket entry 263 destroyed this date.(hnw)
265 MOTION for Order to Show Cause by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott. (Castaneda, Brenda) (Entered: 09/06/2017)
266 Brief / Memorandum in Support re 265 MOTION for Order to Show Cause . filed by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott. (Attachments: # 1 Exhibit 1 − Performance Indicators Chart, # 2 Exhibit 2 − Plaintiff's Notice letter to DOC, # 3 Exhibit 3 − Historical Review of Performance Indicators Chart, # 4 Exhibit 4 − Scharff March 2016 Report, # 5 Exhibit 5 − Scharff September 2016 Report, # 6 Exhibit 6 − Scharff January 2017 Report, # 7 Exhibit 7 − Scharff March 2017 Report, # 8 Exhibit 8 − Scharff June 2017 Report, # 9 Exhibit 9 − DOC response letter to Plaintiff's Notice, # 10 Exhibit 10 − TH Declaration, # 11 Exhibit 11 − TH medical records excerpts, # 12 Exhibit 12 − ES Declaration, # 13 Exhibit 13 − CS Declaration, # 14 Exhibit 14 − CS Supplemental Declaration, # 15 Exhibit 15 − TG Declaration, #

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16 Exhibit 16 − TG Supplemental Declaration, # 17 Exhibit 17 − AD Declaration, # 18 Exhibit 18 − JB Declaration, # 19 Exhibit 19 − JB Supplemental Declaration, # 20 Exhibit 20 − MH Declaration, # 21 Exhibit 21 − MG Declaration, # 22 Exhibit 22 − CR Declaration, # 23 Exhibit 23 − TM Declaration, # 24 Exhibit 24 − SR Declaration, # 25 Exhibit 25 − SR Supplemental Declaration, # 26 Exhibit 26 − SR 2nd Supplemental Declaration, # 27 Exhibit 27 − SR UVA medical records faxed May 2016, # 28 Exhibit 28 − SR UVA medical records excerpts Mar. and Apr. 2017, # 29 Exhibit 29 − BG Declaration, # 30 Exhibit 30 − BG Supplemental Declaration, # 31 Exhibit 31 − BG 2nd Supplemental Declaration, # 32 Exhibit 32 − Turman Declaration, # 33 Exhibit 33 − Sealed, # 34 Exhibit 34 − Sealed, # 35 Exhibit 35 − Sealed, # 36 Exhibit 36 − B Gowen Declaration, # 37 Exhibit 37 − WT Declaration, # 38 Exhibit 38 − WT Supplemental Declaration, # 39 Exhibit 39 − K Rader Declaration, # 40 Exhibit 40 − Sealed, # 41 Exhibit 41 − VK Declaration, # 42 Exhibit 42 − RM Declaration, # 43 Exhibit 43 − DR Declaration, # 44 Exhibit 44 − TB Grievances Mar 2017, # 45 Exhibit 45 − TB Grievance May 2017, # 46 Exhibit 46 − LR Declaration, # 47 Exhibit 47 − VA Declaration, # 48 Exhibit 48 − MM Declaration, # 49 Exhibit 49 − AC Declaration, # 50 Exhibit 50 − KR Declaration, # 51 Exhibit 51 − DS Declaration, # 52 Exhibit 52 − MH Grievances Dated Sept. 2016, # 53 Exhibit 53 − CG Declaration, # 54 Exhibit 54 − NV Declaration)(Castaneda, Brenda)
267 MOTION for Leave to File Brief Longer than 25 Pages by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott. (Castaneda, Brenda)
268 MOTION to Seal Document Exhibits 33, 34, 35, and 40 to Motion for Show Cause by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott. (Attachments: # 1 Text of Proposed Order)(Castaneda, Brenda)
269 MOTION for Philip Fornaci to Appear Pro Hac Vice. by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott. (Castaneda, Brenda)
270 MOTION for Adeola Ogunkeyede to Appear Pro Hac Vice. by Lucetia Robinson, Cynthia B. Scott. (Castaneda, Brenda)
271 ORAL ORDER granting 267 Motion for Leave to File excess pages. Entered by Judge Norman K. Moon on 9/6/17. (jcj)
272 Order Referring Case to Magistrate Judge Joel C. Hoppe. Defendants are ordered to respond within seven days from the date of this order to motion 268 . Any member of the public wishing to file an objection to the motion is ADVISED that it should do so by the same date, after which the Court intends to rule on the motion. Signed by Judge Norman K. Moon on 9/7/17. (hnw)
273 Oral ORDER granting 269 MOTION for Philip Fornaci to Appear Pro Hac Vice Attorney Philip Jerome Fornaci for Belinda Gray,Philip Jerome Fornaci for Toni Hartlove,Philip Jerome Fornaci for Karen Powell,Philip Jerome Fornaci for Lucetia Robinson added, and Cynthia B. Scott, Rebecca L. Scott. Entered by Judge Norman K. Moon on 9/7/17. (hnw)
274 Oral ORDER granting 270 MOTION for Adeola Ogunkeyede to Appear Pro Hac Vice Attorney Adeola Ogunkeyede for Belinda Gray,Adeola Ogunkeyede for Toni Hartlove,Adeola Ogunkeyede for Karen Powell,Adeola Ogunkeyede for Lucetia Robinson,Adeola Ogunkeyede for Cynthia B. Scott,Adeola Ogunkeyede for Rebecca L. Scott added. Entered by Judge Norman K. Moon on 9/7/17. (hnw)
275 Response re 268 MOTION to Seal Document Exhibits 33, 34, 35, and 40 to Motion for Show Cause . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Vorhis, Richard)
276 ORDER granting 268 Motion to Seal Documents 266−33, 266−34, 266−35, and 266−40 for 45 days from the date of this order. Signed by Judge Norman K. Moon on 9/18/17. (hnw)
277 (Sealed Documents are UNSEALED 11/7/17)− Pursuant to Order 276 said exhibits are filed under seal for 45 days from the date of said order Exhibit 266−33 (Attachments: # 1 Exhibit 266−34, # 2 Exhibit 266−35, # 3 Exhibit 266−40)(hnw) Document Restrictions modified. Documents No longer Sealed as specified in Order at 276 the 45

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days having expired. Modified on 11/7/2017 (hnw).
278 MOTION for Extension of Time to File Response/Reply as to 265 MOTION for Order to Show Cause by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Vorhis, Richard)
279 ORDER granting 278 Motion for Extension of Time to File Response to Plaintiffs' Motion to Show Cause. Responses due by 10/20/2017. Signed by Magistrate Judge Joel C. Hoppe on 9/19/17. (hnw) Modified on 9/21/2017 (hnw).VACATED PURSUSANT TO ORDER 282 ENTERED 9/21/17
280 NOTICE of Appearance by Diane Marie Abato on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Abato, Diane)
281 MOTION to Vacate 279 Order on Motion for Extension of Time to File Response/Reply by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling..Motions referred to Judge Joel C. Hoppe (Attachments: # 1 Text of Proposed Order)(Vorhis, Richard) Modified on 9/21/2017 (hnw) To refer motion to Judge Hoppe.
282 ORDER granting 281 Motion to Vacate 279 Order on Motion for Extension of Time to File Response to 265 MOTION for Order to Show Cause. Defendants' brief in response to plaintiffs' motion to show cause must be filed not later than October 10, 2017. Signed by Magistrate Judge Joel C. Hoppe on 9/21/17. (hnw)
283 MOTION to Withdraw as Attorney Ms. Walters, Ms. Golden, Ms. Trodden, and Ms. Charlton by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Castaneda, Brenda)
284 ORDER granting 283 Motion to Withdraw as Attorney. Attorneys Erin Margaret Trodden; Amy Elizabeth Walters; Mary Frances Charlton and Deborah Maxine Golden terminated. Signed by Magistrate Judge Joel C. Hoppe on 10/3/17. (hnw)
285 RESPONSE in Opposition re 265 MOTION for Order to Show Cause . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Abato, Diane)
286 Brief/Memorandum in Support of Defendants' Response in Opposition to UECF 266). filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit 1 − Dr. Scharff August 7−10−2017 Report, # 2 Exhibit 2 − Dr. Scharff January 20−21−2017, # 3 Exhibit 3 − Aff. of J. Dillman re Expenses Related to Scott v. Clarke, # 4 Exhibit 4 − Aff. of J. Dillman re Sick Call Process, # 5 Exhibit 5 − Dr. Scharff Correspondence with A. Deeds, # 6 Exhibit 6 − Dr. Scharff Correpsondence re Pill Crushing, # 7 Exhibit 7 − Dr. Scharff Correspondence re T. Gilmer, # 8 Exhibit 8 − Dr. Scharff Correspondence with M. Grant, # 9 Exhibit 9 − Aff. of Epps and Shifflett re Sick Call Visits)(Abato, Diane)
287 MOTION for Leave to File Excess Pages re ECF 286 by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Abato, Diane)
288 Oral ORDER granting 287 Motion for Leave to File Excess Pages. Entered by Magistrate Judge Joel C. Hoppe on 10/11/17. (JCH)
289 MOTION for Extension of Time to File Response/Reply by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Castaneda, Brenda)
290 ORDER granting 289 Motion for Extension of Time to File Reply Replies due by 10/31/2017.. Signed by Magistrate Judge Joel C. Hoppe on 10/13/2017. (hnw)
291 NOTICE of Appearance by Shannon Marie Ellis on behalf of Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott (Ellis, Shannon)
292 NOTICE of Hearing: (CR) Bench Trial/Oral Argument set for June 11−15, 2018 09:30 AM in Charlottesville before Judge Norman K. Moon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (hnw)

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293 REPLY to Response to Motion re 265 MOTION for Order to Show Cause . filed by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott. (Attachments: # 1 Exhibit 1 − sealed, # 2 Exhibit 2 − Decl. D.H.)(Castaneda, Brenda)
294 MOTION to Seal Document Exhibit 1 to Plaintiffs' Reply Brief by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order to Seal)(Castaneda, Brenda)
295 MOTION to Withdraw as Attorney Ivy Finkenstadt by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Castaneda, Brenda)
296 ORDER granting 295 Motion to Withdraw as Attorney. Attorney Ivy Ann Finkenstadt terminated. Signed by Magistrate Judge Joel C. Hoppe on 11/1/17. (jcj)
297 ORDER granting 294 Motion to Seal Document (Exhibit 1 to Plaintiffs' Reply Memorandum in Support of their Motion for an Order to Show Cause filed on October 31, 2017. The above mentioned document shall be sealed for seven (7) days from the date of this order. At the conclusion of that period, absent any motion by Defendants to extend the seal, the Clerk shall place the document on the public record. Should Defendants file such a motion before expiration of the 7−day period, the document will remain sealed pending disposition of the motion. Signed by Magistrate Judge Joel C. Hoppe on 11/2/17. (jcj)
298 Sealed Document are UNSEALED 11/20/17 (per order) Exhibit 1 to Plaintiffs' Reply Memorandum in Support of their Motion for an Order to Show Cause filed on October 31, 2017 − Pursuant to Order 297 said exhibit is filed under seal for seven (7) days from the date of this order. (jcj) Modified on 11/20/2017 (hnw).
299 Exhibits filed at 277 no longer sealed pursuant to 276 Order directing sealing for 45 days only. Time has expired and exhibits unsealed this date. (hnw)
300 Exhibits filed at 298 no longer sealed pursuant to 297 Order directing sealing for 7 days only. Time has expired and exhibits unsealed this date(hnw)
301 Consent MOTION for Release of Records by Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Consent Order for Release of Records)(Ellis, Shannon)
302 ORDER granting 301 Consent Motion For Release of Records. Signed by Magistrate Judge Joel C. Hoppe on 12/1/17. (hnw)
303 Joint MOTION for Discovery and Discovery Plan by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Pre−Trial Order)(Ciolfi, Angela)
304 ORDER granting 303 Motion for Discovery/PRE−TRIAL ORDER. Signed by Magistrate Judge Joel C. Hoppe on 12/4/17. (hnw)
305 NOTICE of Appearance by Edward J. McNelis, III on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (McNelis, Edward)
306 NOTICE of Appearance by Elizabeth Martin Muldowney on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Muldowney, Elizabeth)
307 NOTICE of Appearance by Ruth Thomas Griggs on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Griggs, Ruth)
308 NOTICE of Hearing: (CR) (No Interpreter requested) TELEPHONIC Status Conference set for 1/29/2018 10:00 AM in Lynchburg before Senior Judge Norman K. Moon. PARTIES WILL RECEIVE DIAL IN INSTRUCTIONS by email for this hearing. (hnw)
309 Consent MOTION to Amend/Correct 304 Order on Motion for Discovery and Pre−Trial Order by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order to Amend Pre−Trial Order)(Ciolfi, Angela)

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310 ORDER granting 309 Motion to Amend/Correct Pre−Trial Order. Signed by Magistrate Judge Joel C. Hoppe on 1/26/18. (jcj)
311 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Status Conference held on 1/29/2018. (Court Reporter Michele Becker.) (ca)
312 ORDER following Status Conference. Signed by Senior Judge Norman K. Moon on 1/29/18(hnw)
313 Joint MOTION for Protective Order & Confidentiality Agreement by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order for Protective Order & Confidentiality Agreement)(Ciolfi, Angela)
314 NOTICE of Telephonic Hearing: (N) (No Interpreter requested) .Telephonic Discovery Hearing set for 3/1/2018 01:40 PM before Magistrate Judge Joel C. Hoppe. Chambers to set up call, dial in information given to plaintiffs' atty and she will be with def counsel.(kld)
315 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephonic Discovery Hearing held in chambers on 3/1/2018. (kld)
316 PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT. Signed by Magistrate Judge Joel C. Hoppe on 3/1/18. (hnw)
317 NOTICE of Appearance by Katherine Cabell Londos on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Londos, Katherine)
318 NOTICE of Appearance by John Chadwick Johnson on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Johnson, John)
319 NOTICE of Appearance by Nathan Henry Schnetzler on behalf of Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (Schnetzler, Nathan)
320 MOTION for Protective Order , Amendment of the Scheduling Order and for a Continuance by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Griggs, Ruth)
321 Brief / Memorandum in Support re 320 MOTION for Protective Order , Amendment of the Scheduling Order and for a Continuance . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Griggs, Ruth)
322 Consent MOTION for Extension of Time to File Response/Reply as to 320 MOTION for Protective Order , Amendment of the Scheduling Order and for a Continuance by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Castaneda, Brenda)
323 Oral ORDER granting 322 Motion for Extension of Time to File Response/Reply. Plaintiffs' response to Defendants' motion, ECF No. 320, is due not later than March 23, 2018. Entered by Magistrate Judge Joel C. Hoppe on 03/23/18. (JCH)
324 Brief / Memorandum in Opposition re 320 MOTION for Protective Order , Amendment of the Scheduling Order and for a Continuance . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24)(Howard, Theodore) (Additional attachment(s) added on 4/4/2018: # 25 Exhibit 324−24 Report − ( Previously filed under seal, filed by order of Court 4/4/18)) (hnw). Modified on 4/4/2018 (hnw).
325 MOTION to Seal Document 324−24 by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Howard, Theodore)

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326 Brief / Memorandum in Support re 325 MOTION to Seal Document 324−24 . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Howard, Theodore)
327 NOTICE of Telephonic Hearing on Motion 320 MOTION for Protective Order , Amendment of the Scheduling Order and for a Continuance : (N) (No Interpreter requested) Telephonic Motion Hearing set for 4/2/2018 09:30 AM before Magistrate Judge Joel C. Hoppe. Chambers to set up call and email parties dial in information. (kld)
328 MOTION for Protective Order Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Schnetzler, Nathan)
329 Brief / Memorandum in Support re 328 MOTION for Protective Order Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Schnetzler, Nathan)
330 REPLY to Response to Motion re 320 MOTION for Protective Order , Amendment of the Scheduling Order and for a Continuance . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Griggs, Ruth)
331 ORDER granting, 325 MOTION to Seal Document 324−24 as to 324 Brief / Memorandum in Opposition,. Signed by Magistrate Judge Joel C. Hoppe on 3/29/18. (hnw)
332 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephonic Motion Hearing held in chambers on 4/2/2018 re 320 MOTION for Protective Order , Amendment of the Scheduling Order and for a Continuance filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson, 328 MOTION for Protective Order Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson. (kld)
333 NOTICE of Appearance by Andrew Joseph Guzzo on behalf of All Plaintiffs (Guzzo, Andrew)
334 NOTICE of Appearance by Casey Shannon Nash on behalf of All Plaintiffs (Nash, Casey)
335 NOTICE of Appearance by Kristi Cahoon Kelly on behalf of All Plaintiffs (Kelly, Kristi)
336 RESPONSE in Opposition re 328 MOTION for Protective Order Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition . filed by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Kelly, Kristi)
337 NOTICE of Appearance by Leonard Anthony Bennett on behalf of All Plaintiffs (Bennett, Leonard)
338 ORDER denying 320 Motion for Protective Order, Amendment of theScheduling Order, and for a Continuance. Because Defendants do not request sealing, and consistent with Plaintiffs limited request to seal, Exhibit 24 to Plaintiffs Memorandum in Opposition, ECF No. 324−24, is hereby UNSEALED and the Clerk shall FILE the sealed report, which was the subject of an Orderentered on March 29, 2018, ECF No. 331, in the public record. Signed by Magistrate Judge Joel C. Hoppe on 4/4/18. (hnw)
339 Additional Evidence − Exhibit 324−24 Previously under seal, Filed this date pursuant to 338 Order of Court. (hnw)

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340 MOTION for Leave to Extend Time and/or to Strike by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Griggs, Ruth)
341 LETTER/STATUS REPORT by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (hnw)
342 REPLY to Response to Motion re 328 MOTION for Protective Order Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Schnetzler, Nathan)
343 MOTION to Strike 342 Reply to Response to Motion, or in the Alternative, Motion for Leave to File a Sur−Reply by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit 1. Plaintiffs' Proposed Sur−Reply Brief)(Kelly, Kristi)
344 Brief / Memorandum in Support re 343 MOTION to Strike 342 Reply to Response to Motion, or in the Alternative, Motion for Leave to File a Sur−Reply . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1. Second Amended Rule 30(b)(6) Deposition Notice)(Kelly, Kristi)
345 NOTICE of Telephonic Hearing on Motion 328 MOTION for Protective Order Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition : and 341 Status Report (FTR) (No Interpreter requested) Telephonic Motion Hearing set for 4/12/2018 12:30 PM in Charlottesville before Magistrate Judge Joel C. Hoppe. Chambers to set up call and email parties dial information. Atty Schnetzler to give dial in information to Northrop Grumman rep.(kld)
346 MOTION to Compel by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Kelly, Kristi)
347 Brief / Memorandum in Support re 346 MOTION to Compel . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Kelly, Kristi)
348 RESPONSE in Opposition re 343 MOTION to Strike 342 Reply to Response to Motion, or in the Alternative, Motion for Leave to File a Sur−Reply . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Schnetzler, Nathan)
349 REPLY to Response to Motion re 343 MOTION to Strike 342 Reply to Response to Motion, or in the Alternative, Motion for Leave to File a Sur−Reply . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Kelly, Kristi)
350 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephonic Motion Hearing held on 4/12/2018 re 328 MOTION for Protective Order Plaintiffs' Notice of Fed. R. Civ. P. 30(b)(6) Deposition filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson, 343 MOTION to Strike 342 Reply to Response to Motion, or in the Alternative, Motion for Leave to File a Sur−Reply filed by Lucetia Robinson, Karen Powell, Cynthia B. Scott, Toni Hartlove, Belinda Gray, Rebecca L. Scott. (jcj)
351 FTR Log Notes for Telephonic Motions Hearing in the Charlottesville Division in CR3 held before Judge Joel C. Hoppe on April 12, 2018. In accordance with 28 USC 753(b), I certify that I monitored the digital recording of this proceeding and that it is a true and correct record, that it is sufficiently intelligible when played on the FTR (For the Record) Player, and that it can be transcribed without undue difficulty. FTR Operator: Joyce C. Jones (jcj)
352 ORDER denying in part, and denying as moot, and denying 328 Motion for Protective Order as more fully set forth in said order and; denying as moot 343 Motion to Strike. Signed by Magistrate Judge Joel C. Hoppe on 4/12/18. (hnw)

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353 NOTICE of Hearing: (CR) Oral Argument on Motions in Limine ( to be filed ) Hearing set for 6/8/2018 11:15 AM in Lynchburg before Senior Judge Norman K. Moon. (hnw)
354 MOTION for Protective Order Regarding Plaintiffs' Rule 30(b)(6) Deposition Notice by Armor Correctional Health Services, Inc..Motions referred to Judge Joel C. Hoppe. (McNelis, Edward)
355 Brief / Memorandum in Support re 354 MOTION for Protective Order Regarding Plaintiffs' Rule 30(b)(6) Deposition Notice . filed by Armor Correctional Health Services, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(McNelis, Edward)
356 Amended MOTION for Extension of Time to Complete Discovery to Hold Depositions Past May 1 by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Castaneda, Brenda)
357 ORDER granting 356 Motion for Extension of Time to Complete Discovery. Plaintiffs and defendants may conduct the three (3) depositions after the close of discovery on May 1, 2018. Signed by Magistrate Judge Joel C. Hoppe on 4/19/18. (jcj)
358 Brief / Memorandum in Opposition re 340 MOTION for Leave to Extend Time and/or to Strike . filed by Cynthia B. Scott. (Howard, Theodore)
359 NOTICE of Appearance by Elizabeth Wilson Hanes on behalf of Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott (Hanes, Elizabeth)
360 RESPONSE in Opposition re 346 MOTION to Compel . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Schnetzler, Nathan)
361 REPLY to Response to Motion re 340 MOTION for Leave to Extend Time and/or to Strike . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Griggs, Ruth)
362 MOTION to Quash Notice of Deposition and Subpoena for Marsha Stanford by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Schnetzler, Nathan)
363 NOTICE of Appearance by Kimberly Anne Rolla on behalf of All Plaintiffs (Rolla, Kimberly)
364 MOTION for Extension to Produce Emails re 352 Order on Motion for Protective Order, Order on Motion to Strike, 338 Order on Motion for Protective Order, by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Schnetzler, Nathan)
365 MOTION for Referral to Alternative Dispute Resolution by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Schnetzler, Nathan)
366 Consent MOTION to Amend/Correct Scheduling Order regarding discovery objections and claims of privilege by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Bennett, Leonard)
367 ORDER granting 366 Consent MOTION to Amend/Correct Scheduling Order regarding discovery objections and claims of privilege. Signed by Magistrate Judge Joel C. Hoppe on 5/1/18. (hnw)
368 REPLY to Response to Motion re 346 MOTION to Compel . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.

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(Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kelly, Kristi)
369 MOTION to Seal by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Kelly, Kristi)
370 Brief / Memorandum in Support re 369 MOTION to Seal . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Kelly, Kristi)
371 RESPONSE in Opposition re 354 MOTION for Protective Order Regarding Plaintiffs' Rule 30(b)(6) Deposition Notice . filed by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit, # 2 Exhibit)(Bennett, Leonard)
372 ORDER granting 369 Motion to File Documents Under Seal. Exhibit 2 to Plaintiff's Reply Brief in Support of Their Motion to Compel, as well as the unredacted version of Plaintiffs Brief (Dkt. Nos. 368, 368−2) shall filed under seal by the Clerks Office.. Signed by Magistrate Judge Joel C. Hoppe on 5/1/2018. (hnw)
373 NOTICE by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling re 362 (Schnetzler, Nathan)
374 ORDER GRANTING Motion 365 for Referral to Alternative Dispute Resolution filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson. Order Referring Case to Hon. Joel C. Hoppe for Mediation. Signed by Senior Judge Norman K. Moon on 5/2/18. (hnw)
375 Oral ORDER withdrawing 362 Motion to Quash, per Defendants' notice 373 . Entered by Magistrate Judge Joel C. Hoppe on 5/2/18. (JCH)
376 Additional Evidence−Exhibit F to USDC Doc #364 Motion for Extension by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling (hnw)
377 NOTICE of Telephonic Hearing on Motion 346 MOTION to Compel , 354 MOTION for Protective Order Regarding Plaintiffs' Rule 30(b)(6) Deposition Notice, 340 MOTION for Leave to Extend Time and/or to Strike : (FTR) (No Interpreter requested) . Telephonic Motion Hearing set for 5/10/2018 03:00 PM before Magistrate Judge Joel C. Hoppe. Chambers to set up conference call and email parties dial in instructions. (kld)
378 Sealed Document−Unredacted Plaintiff's Reply Brief in Support of their Motion to Compel (Attachments: # 1 Sealed Exhibit #2 to Plaintiff's Reply Brief)Pursuant to Order 372 of the Court dated 5/2/2018(hnw)
379 NOTICE of Telephonic Hearing: (N) (No Interpreter requested) In Chambers Conference Call set for 5/4/2018 12:30 PM before Magistrate Judge Joel C. Hoppe. Chambers to set up call and email Mr. Bennett, Mr. Schnetzler and Ms. Londos dial in information.(kld)
380 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: In Chambers Conference Call held on 5/4/2018. (kld)
381 Brief / Memorandum in Opposition re 364 MOTION for Extension to Produce Emails re 352 Order on Motion for Protective Order, Order on Motion to Strike, 338 Order on Motion for Protective Order, . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Kelly, Kristi)
382 Order Requesting the Warden at Fluvanna Correctional Center for Women to transport the plaintiffs to Court for hearing on May 16, 2018 10:00 a.m.. Signed by Magistrate Judge Joel C. Hoppe on 5/10/18. (kld)
383 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: TelephonicMotion Hearing held on 5/10/2018 re 346 MOTION to Compel filed by Lucetia Robinson, Karen Powell, Cynthia B. Scott, Toni Hartlove, Belinda Gray, Rebecca L. Scott, 364 MOTION for Extension to Produce Emails re 352 Order on Motion for Protective Order, Order on Motion to Strike, 338 Order on Motion for Protective Order, filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick

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Schilling, A. David Robinson, 354 MOTION for Protective Order Regarding Plaintiffs' Rule 30(b)(6) Deposition Notice filed by Armor Correctional Health Services, Inc., 340 MOTION for Leave to Extend Time and/or to Strike filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson. Status hearing. Order will issue. (hnw)
384 FTR Log Notes for Telephonic Motion Hearing in the Charlottesville Division in CR1 held before Judge Joel C. Hoppe on 5/10/18. In accordance with 28 USC 753(b), I certify that I monitored the digital recording of this proceeding and that it is a true and correct record, that it is sufficiently intelligible when played on the FTR (For the Record) Player, and that it can be transcribed without undue difficulty. FTR Operator: H. Wheeler (hnw)
385 AMENDED Order Requesting the Warden at Fluvanna Correctional Center for Women to transport the plaintiffs named therein to Court for hearing on May 16, 2018 at 9:00 a.m. re 382 Order Transport Plaintiff. Signed by Magistrate Judge Joel C. Hoppe on 5/10/18. (hnw)
386 ORDER granting 340 Defendants Motion for Leave to Extend Time and/or to Strike (Motion to Extend Time) ; Plaintiffs Motion 346 to Compel is GRANTED IN PART; Armors Motion 354 for Protective Order is hereby DENIED IN PART, and further relief as more fully set forth in said order. Signed by Magistrate Judge Joel C. Hoppe on 5/14/18. (hnw)
387 MOTION to Strike and Exclude the Notice of Deposition for and Trial Testimony by Dr. Denise Young by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Griggs, Ruth)
388 Brief / Memorandum in Support re 387 MOTION to Strike and Exclude the Notice of Deposition for and Trial Testimony by Dr. Denise Young . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit 1)(Griggs, Ruth)
389 REPLY to Response to Motion re 364 MOTION for Extension to Produce Emails re 352 Order on Motion for Protective Order, Order on Motion to Strike, 338 Order on Motion for Protective Order, . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit A)(Schnetzler, Nathan)
390 MOTION to Overrule Defendants' Privilege Objections by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Kelly, Kristi)
391 Brief / Memorandum in Support re 390 MOTION to Overrule Defendants' Privilege Objections . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Kelly, Kristi)
392 MOTION for Discovery Unopposed Motion to Allow Cairns Deposition by Belinda Gray, Toni Hartlove, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Order Allowing Alice Cairns' Deposition)(Ellis, Shannon)
393 ORDER granting 392 Motion to Allow Alice Cairns' Deposition. Signed by Magistrate Judge Joel C. Hoppe on 5/22/2018. (hnw)
394 MOTION to Continue by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Schnetzler, Nathan)
395 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of RN Jackie Clark by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Griggs, Ruth)
396 Brief / Memorandum in Support re 395 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of RN Jackie Clark . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit

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1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Griggs, Ruth)
397 MOTION for Site View by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Schnetzler, Nathan)
398 MOTION to Strike Defendants' Expert, Thomas Gable by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Bennett, Leonard)
399 MOTION to Strike Defendants' Expert, Harish Moorjani by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Bennett, Leonard)
400 Brief / Memorandum in Support re 399 MOTION to Strike Defendants' Expert, Harish Moorjani . filed by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1 (Moorjani Report), # 2 Exhibit 2 (Moorjani dep. excerpts), # 3 Text of Proposed Order)(Bennett, Leonard)
401 MOTION to Strike Defendants' Expert, James Welch by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Bennett, Leonard)
402 Brief / Memorandum in Support re 401 MOTION to Strike Defendants' Expert, James Welch . filed by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1 (Welch Report), # 2 Exhibit 2 (Welch Dep. excerpts), # 3 Exhibit 3 (Clark Report), # 4 Text of Proposed Order)(Bennett, Leonard)
403 MOTION to Strike Defendants' Expert, D. Scott Dodrill by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Bennett, Leonard)
404 Brief / Memorandum in Support re 403 MOTION to Strike Defendants' Expert, D. Scott Dodrill . filed by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit 1 (Dodrill Report − to be filed under seal), # 2 Exhibit 2 (Dodrill Dep. excerpts), # 3 Exhibit 3 (Clark report), # 4 Text of Proposed Order)(Bennett, Leonard)
405 MOTION to Seal Document by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Bennett, Leonard)
406 Brief / Memorandum in Support re 405 MOTION to Seal Document . filed by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Bennett, Leonard)
407 RESPONSE in Opposition re 387 MOTION to Strike and Exclude the Notice of Deposition for and Trial Testimony by Dr. Denise Young . filed by Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit Pltf Initial Disclosures, # 2 Exhibit Email with Notice of Deposition, # 3 Exhibit Notice Attachment to Email, # 4 Exhibit Emails 5−14−18, # 5 Exhibit Emails 5−18−18, # 6 Exhibit Emails 4−27−18, # 7 Exhibit Young Deposition Transcript, # 8 Exhibit Exhibit to be filed under seal)(Castaneda, Brenda)
408 MOTION to Seal Document 407 Response in Opposition to Motion,, Exhibit 8 by Toni Hartlove, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Castaneda, Brenda)

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409 Brief / Memorandum in Support re 408 MOTION to Seal Document 407 Response in Opposition to Motion,, Exhibit 8 . filed by Toni Hartlove, Cynthia B. Scott. (Castaneda, Brenda)
410 NOTICE of Hearing on Motion 394 MOTION to Continue : (FTR) (No Interpreter requested) Telephonic Motion Hearing set for 5/30/2018 11:30 AM in Harrisonburg before Magistrate Judge Joel C. Hoppe. Chambers to set up call. Parties emailed dial in information.(kld)
411 MOTION in Limine by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Bennett, Leonard)
412 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of Dr. Robert Greifinger by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Griggs, Ruth)
413 Brief / Memorandum in Support re 412 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of Dr. Robert Greifinger . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Griggs, Ruth)
414 MOTION to Exclude Trial Testimony by Dr. Louise Man by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Griggs, Ruth)
415 Brief / Memorandum in Support re 414 MOTION to Exclude Trial Testimony by Dr. Louise Man . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Griggs, Ruth)
416 MOTION to Strike Defendants' Expert, Alfred Joshua by Toni Hartlove, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Castaneda, Brenda)
417 MOTION for Summary Judgment by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Schnetzler, Nathan)
418 Brief / Memorandum in Support re 416 MOTION to Strike Defendants' Expert, Alfred Joshua . filed by Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit Joshua Report, # 2 Exhibit Excerpts of Joshua Dep., # 3 Exhibit Jackie Clark Report, # 4 Exhibit Joshua Supplemental Materials)(Castaneda, Brenda)
419 Brief / Memorandum in Support re 417 MOTION for Summary Judgment . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 50, # 50 Exhibit 51, # 51 Exhibit 52, # 52 Exhibit 53, # 53 Exhibit 54, # 54 Exhibit 55, # 55 Exhibit 56, # 56 Exhibit 57, # 57 Exhibit 58, # 58 Exhibit 59, # 59 Exhibit 60, # 60 Exhibit 61)(Schnetzler, Nathan)
420 Additional Evidence by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling Exhibit 49 to Defendants' Memorandum in Support of Motion for Summary Judgment (Schnetzler, Nathan)
421 MOTION Leave to File Brief in Excess of 25 Pages re 419 Brief / Memorandum in Support,,,,, 417 MOTION for Summary Judgment by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Schnetzler, Nathan)
422 MOTION to Seal Exhibits to Defendants' Memorandum in Support of Motion for Summary Judgment by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson,

05/29/2018 05/29/2018 05/29/2018 05/29/2018 05/30/2018
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Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Schnetzler, Nathan)
423 Brief / Memorandum in Opposition re 394 MOTION to Continue Hearing on Show Cause. filed by Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Ciolfi, Angela)
424 Petition for Writ of Habeas Corpus ad testificandum by Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit Exhibits 1−3Declarations of Named Pltfs, # 2 Text of Proposed Order, # 3 Text of Proposed Order Proposed Writ − Clerk)(Castaneda, Brenda)
425 MOTION for Leave to File Excess Pages by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Howard, Theodore)
426 TRIAL BRIEF by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott.(Howard, Theodore)
427 TRIAL BRIEF Exhibits to Dkt. No. 426 by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48)(Howard, Theodore)
428 MOTION to Seal Document 427 Trial Brief,,,, Exhibit 38 by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Howard, Theodore)
430 Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephonic Motion Hearing held on 5/30/2018 re 394 MOTION to Continue filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson. (Court Reporter Sonia Ferris, OCR.) (kld)
431 ORAL MOTION to Withdraw 394 MOTION to Continue by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (kld)
432 ORAL ORDER granting 431 Oral Motion to Withdraw doc 394 Motion to Continue. Doc 394 Motion to Continue withdrawn. Entered by Magistrate Judge Joel C. Hoppe on 5/30/18. (kld)
433 Letter to the court from Nathan H. Schnetzler with exhibits to Defendants' Memorandum in support of their Motion for Summary Judgment referenced in Defendants' Motion to Seal 422 . (jcj)
434 MOTION for Leave to File Brief in Excess of Twenty−Five Pages by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit A − Proposed Order)(Griggs, Ruth)
435 Order Requesting the Warden at Fluvanna Correctional Center for Women to transport the following individuals CYNTHIA BEATRICE SCOTT #1099736, TONI NANETTE HARTLOVE #1050624 and MELISSA FAYE ATKINS #1070682 to the United States District Court in Charlottesville, VA for a bench trial on June 11−15, 2018 beginning at 9:00 a.m.. Signed by Magistrate Judge Joel C. Hoppe on 5/31/2018. (tvt)
436 Notice Rescheduling Hearing (CR) previously set for 6/8/2018 at 11:15 AM before Judge Norman K. Moon in Lynchburg. Oral Argument Hearing re−set for 6/8/2018

05/31/2018
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01:30 PM in Lynchburg before Senior Judge Norman K. Moon. NOTE: CHANGE IN TIME ONLY.(sfc)
437 Order Requesting the Warden at Fluvanna Correctional Center for Women to transport the following individual ANDREA FERNANDE NICHOLS#1114038 to the United States District Court in Charlottesville, VA for bench trial taking place on June 11−15, 2018 beginning at 9:00 a.m. This individual will need to be available for the bench trial on June 11−12, 2018. Signed by Magistrate Judge Joel C. Hoppe on 5/31/2018. (tvt)
438 Order Requesting the Warden at Fluvanna Correctional Center for Women to transport the following individual TINA LAMARR MILLER #1735907 to the United States District Court in Charlottesville, VA for a bench trial on June 11−15, 2018 beginning at 9:00 a.m. This individual will need to be available for the bench trial on June 14−15, 2018. Signed by Magistrate Judge Joel C. Hoppe on 5/31/2018. (tvt)
439 ORDER granting 405 Motion to Seal Document. Signed by Magistrate Judge Joel C. Hoppe on 5/31/18. (jcj)
440 Sealed Document − in re Order (439) − Expert Report of D. Scott Dodrill (jcj)
441 ORDER granting 408 Motion to Seal Document. Signed by Magistrate Judge Joel C. Hoppe on 5/31/18. (jcj)
442 Sealed Document − in re Order (441) − Exhibit 8 attached to Plaintiff's Response to Defendants' Motion to Strike/Exclude Testimony of Dr. Young (Dkt. 407−8) (jcj)
443 ORDER granting 421 Motion for leave to file brief in excess of twenty−five pages. Signed by Magistrate Judge Joel C. Hoppe on 5/31/18. (jcj)
444 ORDER granting 422 Motion to Seal. Signed by Magistrate Judge Joel C. Hoppe on 5/31/18. (jcj)
445 Sealed Document − Exhibits to Defendants' Memorandum in Support of their Motion for Summary Judgment (motion to seal #422). 7 volumes in black binders. (jcj)
446 ORDER granting 425 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Joel C. Hoppe on 5/31/18. (jcj)
447 ORDER granting 428 Motion to Seal Document (Exhibit 38) for seven (7) days from the date of this order. Signed by Magistrate Judge Joel C. Hoppe on 5/31/18. (jcj)
448 Sealed Document − Per Order (447) Exhibit 38 − Reed Records (jcj)
449 ORDER granting 434 Motion for Leave for Defendant's to File a brief in excess of twenty−five pages. Signed by Magistrate Judge Joel C. Hoppe on 5/31/18. (jcj)
450 Joint MOTION to Amend/Correct 304 Order on Motion for Discovery and Pre−Trial Order by Toni Hartlove, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order to Amend Pre−Trial Order)(Ciolfi, Angela)
451 CONSENT ORDER TO AMEND PRE−TRIAL ORDER. Signed by Magistrate Judge Joel C. Hoppe on 6/1/18. (jcj)
452 Joint MOTION Regarding Treating Health Care Providers and Dr. Moorjani by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Griggs, Ruth)
453 MOTION to Strike 417 MOTION for Summary Judgment by Toni Hartlove, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Ciolfi, Angela)
454 Brief / Memorandum in Support re 453 MOTION to Strike 417 MOTION for Summary Judgment . filed by Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Ciolfi, Angela)
455 TRANSCRIPT REQUEST (3 Day Service) by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling for Doc #394 − Motion to Continue held on 05/30/2018 reported by Court Reporter Sonia Ferris before Judge Joel C. Hoppe. Transcript Due Deadline will be set when Financial Arrangements are made.

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(Abato, Diane)
456 Financial arrangements made (3 Days Service) re 455 Transcript Request, Transcript due by 6/7/2018. (sf)
457 Letter from Nathan H. Schnetzler for sending the Court a courtesy copy of the exhibits filed in conjunction with Defendants' Memorandum in Support of their Motion for Summary Judgment referenced in ECF #419. There are two (2) CD's provided. (jcj)
458 ORDER granting 452 Joint Motion Regarding Treating Health Care Providers and Dr. Moorjani. Signed by Senior Judge Norman K. Moon on 6/4/18. (jcj)
459 Brief / Memorandum in Opposition re 401 MOTION to Strike Defendants' Expert, James Welch . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Griggs, Ruth)
460 ORDER denying 417 Motion for Summary Judgment and denying as moot 453 Motion to Strike. Signed by Senior Judge Norman K. Moon on 6/4/18. (jcj)
461 Response re 390 MOTION to Overrule Defendants' Privilege Objections . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Schnetzler, Nathan)
462 RESPONSE to Motion re 397 MOTION for Site View . filed by Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kelly, Kristi)
463 Brief / Memorandum in Opposition re 412 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of Dr. Robert Greifinger . filed by Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit 1)(Kelly, Kristi)
464 TRANSCRIPT of Proceedings: Telephonic Motions Hearing held on <>5/30/2018 before Judge Joel C. Hoppe. Court Reporter/Transcriber Sonia Ferris, Telephone number SoniaF@vawd.uscourts.gov 540.434.3181 Ext. 7. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/26/2018. Redacted Transcript Deadline set for 7/6/2018. Release of Transcript Restriction set for 9/4/2018. (sf)
465 Brief / Memorandum in Opposition re 395 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of RN Jackie Clark . filed by Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Kelly, Kristi)
466 RESPONSE in Opposition re 411 MOTION in Limine . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Schnetzler, Nathan)
467 REPLY to Response to Motion re 401 MOTION to Strike Defendants' Expert, James Welch . filed by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Bennett, Leonard)
468 MOTION to Strike or Alternatively to Exclude Communications with Compliance Monitor by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Bennett, Leonard)
469 Brief / Memorandum in Support re 468 MOTION to Strike or Alternatively to Exclude Communications with Compliance Monitor . filed by Belinda Gray, Toni Hartlove, Karen Powell, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. (Attachments: # 1 Exhibit)(Bennett, Leonard)
470 RESPONSE in Opposition re 403 MOTION to Strike Defendants' Expert, D. Scott Dodrill . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Schnetzler, Nathan)

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471 Brief / Memorandum in Opposition re 416 MOTION to Strike Defendants' Expert, Alfred Joshua . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Attachments: # 1 Exhibit 1)(Muldowney, Elizabeth)
472 MOTION for Extension of Time to File Response/Reply as to 416 MOTION to Strike Defendants' Expert, Alfred Joshua (and deem memorandum in opposition timely filed) by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Muldowney, Elizabeth)
473 Oral ORDER granting 472 Motion for Extension of Time to File Response/Reply to Plaintiffs' Motion to Strike 416 . Defendants' brief in opposition 471 is hereby deemed timely filed. Entered by Magistrate Judge Joel C. Hoppe on 6/6/18. (JCH)
474 Second MOTION to Substitute Party by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Rolla, Kimberly)
475 Second MOTION to Substitute Party by Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Rolla, Kimberly)
476 MOTION to Strike and/or Exclude Plaintiffs' Demonstrative Summaries by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling.Motions referred to Judge Joel C. Hoppe. (Schnetzler, Nathan)
477 Proposed Pretrial Order − Moon (Joint) by Toni Hartlove, Cynthia B. Scott (Attachments: # 1 Exhibit 1 − D's Responses to RFAs, # 2 Exhibit 2 − Joint Stip Authenticity, # 3 Exhibit 3 − P's Witness & Depo Designations, # 4 Exhibit 4 − D's Objections to Witness, # 5 Exhibit 5 − D's Witness List, # 6 Exhibit 6 − D's Objections & Counter−Designations, # 7 Exhibit 7 − P's Exhibit List, # 8 Exhibit 8a − D's Exhibit List, # 9 Exhibit 8b − D's Exhibit List Attach 1−8, # 10 Exhibit 8c − D's Exhibit List Attach 9, # 11 Exhibit 8d − D's Exhibit List Chart A, # 12 Exhibit D's Objections to Exhibits, # 13 Exhibit P's Objections to Exhibits)(Ciolfi, Angela)
478 ORDER granting 474 Motion to Substitute Party. Melissa Atkins, Stephen Herrick and Eric Aldridge added. Karen Powell (A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated ), Lucetia Robinson (A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated ), Frederick Schilling (Director of Health Services, Virginia Department of Corrections), Rebecca L. Scott (A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated), Phyllis A. Baskerville (Warden, Fluvanna Correctional Center for Women) and Belinda Gray (A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated ) terminated. Signed by Magistrate Judge Joel C. Hoppe on 6/7/18. (jcj)
479 ORAL ARGUMENT ORDER. Signed by Senior Judge Norman K. Moon on 6/7/18. (jcj)
480 REPLY to Response to Motion re 412 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of Dr. Robert Greifinger . filed by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling. (Griggs, Ruth)
481 Brief / Memorandum in Opposition re 476 MOTION to Strike and/or Exclude Plaintiffs' Demonstrative Summaries . filed by Melissa Atkins, Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit 1−Email transmittal, # 2 Exhibit 2−Plaintiffs Demonstratives, # 3 Exhibit 3−Email clarification)(Ciolfi, Angela)
482 RESPONSE in Opposition re 468 MOTION to Strike or Alternatively to Exclude Communications with Compliance Monitor . filed by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson. (Schnetzler, Nathan)
483 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Motion Hearing held on 6/8/2018 re 401 MOTION to Strike Defendants' Expert, James Welch filed by Bobinette D. Fearce, Cynthia B. Scott, Belinda Gray, Rebecca L. Scott, Marguerite Richardson, Patricia Knight, Lucetia Robinson, Karen Powell, Toni

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Hartlove, 416 MOTION to Strike Defendants' Expert, Alfred Joshua filed by Cynthia B. Scott, Toni Hartlove, 395 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of RN Jackie Clark filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson, 476 MOTION to Strike and/or Exclude Plaintiffs' Demonstrative Summaries filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson, 403 MOTION to Strike Defendants' Expert, D. Scott Dodrill filed by Bobinette D. Fearce, Cynthia B. Scott, Belinda Gray, Rebecca L. Scott, Marguerite Richardson, Patricia Knight, Lucetia Robinson, Karen Powell, Toni Hartlove, 412 MOTION to Strike and/or Exclude the Expert Report and Trial Testimony of Dr. Robert Greifinger filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson, 468 MOTION to Strike or Alternatively to Exclude Communications with Compliance Monitor filed by Cynthia B. Scott, Belinda Gray, Rebecca L. Scott, Lucetia Robinson, Karen Powell, Toni Hartlove, 397 MOTION for Site View filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson, 411 MOTION in Limine filed by Bobinette D. Fearce, Cynthia B. Scott, Belinda Gray, Rebecca L. Scott, Marguerite Richardson, Patricia Knight, Lucetia Robinson, Karen Powell, Toni Hartlove. (Court Reporter Sonia Ferris.) (sfc)
484 Notice Rescheduling Hearing (CR) previously set for June 11−15, 2018 at 09:30 AM before Judge Norman K. Moon in Charlottesville. Bench Trial set for 6/11/2018 thru 6/15/2018 − Trial will begin at 09:30 AM on June 11, 2018. Second and remaining days of trial will begin at 09:00 AM in Charlottesville before Senior Judge Norman K. Moon. (sfc)
485 FINAL PRETRIAL ORDER. Signed by Senior Judge Norman K. Moon on 06/08/2018. (sfc)
486 MOTION for Writ of habeas corpus ad testificandum by Melissa Atkins, Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order, # 2 Proposed writ)(Rolla, Kimberly)
487 Oral ORDER granting 486 Motion for Writ. A transportation order will issue for Margie Ryder for court on June 13. Entered by Magistrate Judge Joel C. Hoppe on 6/10/18. (JCH)
488 ORDER denying without prejudice 395 Motion to Strike ; taking under advisement 397 Motion ; denying without prejudice 401 Motion to Strike ; denying without prejudice 403 Motion to Strike ; denying without prejudice 411 Motion in Limine; denying without prejudice 412 Motion to Strike ; denying without prejudice 416 Motion to Strike ; denying without prejudice 468 Motion to Strike and denying with prejudice 476 Motion to Strike. Signed by Senior Judge Norman K. Moon on 6/11/18. (jcj)
489 Order Requesting the Warden at Fluvanna Correctional Center for WOmen to transport the plaintiff MARGIE RYDER, DOC# 1936746 to Court for hearing on June 13, 2018 at 9:00 a.m.. Signed by Magistrate Judge Joel C. Hoppe on 6/11/2018. (jcj)
493 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Bench Trial Day One held on 6/11/2018. (Court Reporters Tracey Aurelio/Sonia Ferris.) (hnw) (Entered: 06/14/2018)
494 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Bench Trial Day Two held on 6/12/2018. Plaintiff rests (Court Reporter Sonia Ferris/Tracey Aurelio.) (hnw) (Entered: 06/14/2018)
495 ORAL ORDER granting 265 Motion for Order to Show Cause. Entered by Senior Judge Norman K. Moon on 6/12/18. (hnw) (Entered: 06/14/2018)
490 TRIAL BRIEF (Corrected) by Melissa Atkins, Toni Hartlove, Cynthia B. Scott.(Ciolfi, Angela)
491 TRANSCRIPT REQUEST (Realtime Rough Draft Service) by Melissa Atkins, Toni Hartlove, Cynthia B. Scott for Hearing held on June 13, 2018 reported by Court Reporter Tracey Aurelio before Judge Norman K. Moon. Transcript Due Deadline will

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be set when Financial Arrangements are made. (Ciolfi, Angela) Modified docket text on 6/14/2018, changing the service to Realtime as the parties have confirmed with the court reporter they're requesting Realtime service. (ca)
496 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Bench Trial Day Three held on 6/13/2018. (Court Reporter Tracey Aurelio.) (hnw) (Entered: 06/14/2018)
492 TRANSCRIPT REQUEST (Daily Service) by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling for Hearing held on 06/13/2018 reported by Court Reporter Tracey Aurelio before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Abato, Diane) Changed document viewing restriction due to attorney filing incorrect transcript request form. Document correctly filed at Document No. 497. (ca)
497 TRANSCRIPT REQUEST (Realtime Rough Draft COPY Service) by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling for Hearing held on 06/13/2018 reported by Court Reporter Tracey Aurelio before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Abato, Diane) Modified docket text on 6/14/2018, changing the service to Realtime as the parties have confirmed with the court reporter they're requesting Realtime service. (ca)
498 MOTION to Strike Testimony of Steven Herrick by Melissa Atkins, Bobinette D. Fearce, Belinda Gray, Toni Hartlove, Patricia Knight, Karen Powell, Marguerite Richardson, Lucetia Robinson, Cynthia B. Scott, Rebecca L. Scott. Motions no longer referred to Judge Joel C. Hoppe. (Bennett, Leonard) Modified on 6/14/2018 (hnw).
500 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Bench Trial Day Four held on 6/14/2018. (Court Reporter Tracey Aurelio.) (hnw) (Entered: 06/18/2018)
501 Minute Entry for proceedings held before Senior Judge Norman K. Moon: Bench Trial Day Five held on 6/15/2018 and concluded. Defense rests. Rebuttal witnesses. Parties to file findings of fact and conclusions of law. (Court Reporter Tracey Aurelio.) (hnw) (Entered: 06/18/2018)
502 Witness List by Eric Aldridge, Melissa Atkins, Harold W. Clarke, Toni Hartlove, Stephen Herrick, Paul C. Ohai, A. David Robinson, Cynthia B. Scott.(hnw) (Entered: 06/18/2018)
503 Exhibit List by Eric Aldridge, Melissa Atkins, Harold W. Clarke, Toni Hartlove, Stephen Herrick, Paul C. Ohai, A. David Robinson, Cynthia B. Scott.. (Attachments: # 1 Continuation)(hnw) Modified on 6/25/2018−NOT SCANNED−ALL EXHIBITS ARE AVAILABLE FOR VIEWING IN THE CLERKS OFFICE(hnw). (Entered: 06/18/2018)
499 Financial arrangements made (Realtime Rough Draft Service) re 491 Transcript Request,, 497 Transcript Request,, (ta)
504 Corrected Transcript Requests have been filed at Document No. 506 and 507 . TRANSCRIPT REQUEST (Ordinary−30 calendar days Service) by Melissa Atkins, Toni Hartlove, Cynthia B. Scott for Pretrial hearing and trial held on June 8, 2018−June 15, 2018 reported by Court Reporter Tracey Aurelio/Sonia Ferris before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Ellis, Shannon) (Main Document 504 replaced on 6/20/2018 with flattened version) (ca). Modified on 6/20/2018 (ca).
505 Corrected Transcript Requests have been filed at Document No. 509 and 510 . TRANSCRIPT REQUEST (Ordinary−30 calendar days Service) by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling for Pretrial Hearing and Trial held on June 8 − 15, 2018 reported by Court Reporter Tracey Aurelio/Sonia Ferris before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Abato, Diane) Modified on 6/20/2018 (ca).
506 TRANSCRIPT REQUEST (Ordinary−30 calendar days Service) by Melissa Atkins, Toni Hartlove, Cynthia B. Scott for Motion Hearing and Bench Trial held on June 8,

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2018; June 11−12, 2018 reported by Court Reporter Sonia Ferris before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Ellis, Shannon)
507 TRANSCRIPT REQUEST (Ordinary−30 calendar days Service) by Melissa Atkins, Toni Hartlove, Cynthia B. Scott for Bench Trial held on June 11−15, 2018 reported by Court Reporter Tracey Aurelio before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Ellis, Shannon)
508 Notice of Correction: Changed viewing restriction of Document 504 (Transcript Request) due to attorney attaching incorrect/deficient pdf; only viewable by court personnel. Document correctly filed at Document Nos. 506 and 507 . (ca)
509 TRANSCRIPT REQUEST (COPY *Only applies if original transcript has been ordered Service) by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling for Motion Hearing and Bench Trial held on June 8, 2018; June 11−12, 2018 reported by Court Reporter Sonia Ferris before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Abato, Diane)
510 TRANSCRIPT REQUEST (COPY *Only applies if original transcript has been ordered Service) by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling for Bench Trial held on June 11−15, 2018 reported by Court Reporter Tracey Aurelio before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Abato, Diane)
511 Notice of Correction: Changed viewing restriction of Document 505 (Transcript Request) due to attorney attaching incorrect/deficient pdf; only viewable by court personnel. Document correctly filed at Document Nos. 509 and 510 . (ca)
512 Transcript Copy Delivered − rough draft − 6/14/2018 re 497 Transcript Request. (ta) Modified on 6/21/2018 to relate this entry to the correct transcript request for rough draft copy. (ca)
513 TRANSCRIPT REQUEST (14 calendar days Service) Amended by Melissa Atkins, Toni Hartlove, Cynthia B. Scott for Bench Trial held on June 11−15, 2018 reported by Court Reporter Tracey Aurelio before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Ellis, Shannon)
514 TRANSCRIPT REQUEST (COPY *Only applies if original transcript has been ordered Service) Amended by Phyllis A. Baskerville, Harold W. Clarke, A. David Robinson, Frederick Schilling for Bench Trial held on June 11−15, 2018 reported by Court Reporter Tracey Aurelio before Judge Norman K. Moon. Transcript Due Deadline will be set when Financial Arrangements are made. (Abato, Diane)
515 Financial arrangements made (14 calendar days Service) re 513 Transcript Request, Transcript due by 7/12/2018. (ta)
516 Financial arrangements made (14 calendar days Service) re 514 Transcript Request, Transcript due by 7/12/2018. (ta)
517 RESPONSE in Opposition re 498 MOTION to Strike Testimony of Steven Herrick . filed by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson. (Schnetzler, Nathan)
518 ORAL ORDER Granting MOTION for Site View 397 filed by Harold W. Clarke, Phyllis A. Baskerville, Frederick Schilling, A. David Robinson; with site view to take place on July 16, 2018 at 1:30pm, accompanied by each parties' designated counsel. Entered by Senior Judge Norman K. Moon on 7/2/18. (hnw)
519 ORDER the parties' post−trial proposed findings of fact and conclusions of law, along with their respective accompanying 25−page narrative Briefs, are due by 8/3/2018. (Responses due by 8/20/2018),. Signed by Senior Judge Norman K. Moon on 7/2/18. (hnw)
520 TRANSCRIPT of Proceedings: Bench Trial − DAY 1 (a.m.) held on June 11, 2018 before Judge Norman K. Moon. Court Reporter/Transcriber Tracey Aurelio, Email: tracey.aurelio@gmail.com. NOTICE RE REDACTION OF TRANSCRIPTS:The

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parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/26/2018. Redacted Transcript Deadline set for 8/6/2018. Release of Transcript Restriction set for 10/3/2018. (ca)
521 TRANSCRIPT of Proceedings: Bench Trial − DAY 2 (p.m.) held on June 12, 2018 before Judge Norman K. Moon. Court Reporter/Transcriber Tracey Aurelio, Email: tracey.aurelio@gmail.com. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/26/2018. Redacted Transcript Deadline set for 8/6/2018. Release of Transcript Restriction set for 10/3/2018. (ca)
522 TRANSCRIPT of Proceedings: Bench Trial − DAY 3 held on June 13, 2018 before Judge Norman K. Moon. Court Reporter/Transcriber Tracey Aurelio, Telephone number tracey.aurelio@gmail.com. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/1/2018. Redacted Transcript Deadline set for 8/13/2018. Release of Transcript Restriction set for 10/9/2018. (sfc)
523 TRANSCRIPT of Proceedings: Bench Trial − DAY 4 held on June 14, 2018 before Judge Norman K. Moon. Court Reporter/Transcriber Tracey Aurelio, Telephone number tracey.aurelio@gmail.com. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/1/2018. Redacted Transcript Deadline set for 8/13/2018. Release of Transcript Restriction set for 10/9/2018. (sfc)
524 TRANSCRIPT of Proceedings: Bench Trial − DAY 5 held on June 15, 2018 before Judge Norman K. Moon. Court Reporter/Transcriber Tracey Aurelio, tracey.aurelio@gmail.com. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/2/2018. Redacted Transcript Deadline set for 8/13/2018. Release of Transcript Restriction set for 10/10/2018. (sfc)
525 Transcript Copies Delivered re 514 Transcript Request (June 11 and 12, 2018 − delivered 7/5/2018; June 13 and 14, 2018 − delivered 7/11/2018; and June 15 delivered 7/12/2018) (sfc)

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526 Financial arrangements made (Ordinary−30 calendar days Service) re 506 Transcript Request, 509 Transcript Request, Transcript due by 8/6/2018. (sf)
527 TRANSCRIPT of Proceedings: Bench Trial − DAY 1 (p.m.) held on 6/11/2018 before Judge Norman K. Moon. Court Reporter/Transcriber Sonia Ferris, Telephone number SoniaF@vawd.uscourts.gov/540.434.3181 Ext. 7. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/15/2018. Redacted Transcript Deadline set for 8/27/2018. Release of Transcript Restriction set for 10/23/2018. (sf) Modified on 7/25/2018 (ca).
528 TRANSCRIPT of Proceedings: Bench Trial − DAY 2 (a.m.) held on 6/12/2018 before Judge Norman K. Moon. Court Reporter/Transcriber Sonia Ferris, Telephone number SoniaF@vawd.uscourts.gov/540.434.3181 Ext. 7. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/15/2018. Redacted Transcript Deadline set for 8/27/2018. Release of Transcript Restriction set for 10/23/2018. (sf) Modified on 7/25/2018 (ca).
529 TRANSCRIPT of Proceedings: Motion hearing held on 6/8/2018 before Judge Norman K. Moon. Court Reporter/Transcriber Sonia Ferris, Telephone number SoniaF@vawd.uscourts.gov/540.434.3181 Ext. 7. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/16/2018. Redacted Transcript Deadline set for 8/27/2018. Release of Transcript Restriction set for 10/24/2018. (sf) Modified on 7/26/2018 (ca).
530 Transcript Copy Delivered re 509 Transcript Request, (sf)
531 Consent MOTION for Extension of Time to File Post−Trial Submissions by Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Howard, Theodore)
532 ORAL ORDER granting 531 Motion for Extension of Time to File until August 6, 2018. Entered by Senior Judge Norman K. Moon on 8/2/18. (hnw)
533 Proposed Findings of Fact by Cynthia B. Scott.(Howard, Theodore)
534 TRIAL BRIEF Post−Trial Brief by Cynthia B. Scott.(Howard, Theodore)
535 Proposed Findings of Fact by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson.(Schnetzler, Nathan)
536 TRIAL BRIEF Post−Trial Brief by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson.(Schnetzler, Nathan)
537 TRIAL BRIEF Post−Trial Response Brief by Cynthia B. Scott.(Howard, Theodore)
538 TRIAL BRIEF Post−Trial Response Brief by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson. (Attachments: # 1 Exhibit A)(Schnetzler, Nathan)

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539 Consent MOTION to Amend/Correct Paper Record of Trial Exhibits by Melissa Atkins, Toni Hartlove, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Ciolfi, Angela)
540 ORDER granting 539 Motion to Amend/Correct paper exhibits. Signed by Judge Joel C. Hoppe on 10/2/18. (hnw) Modified on 10/2/2018 (hnw).
541 AMENDED Exhibit List pursuant to Order 540 entered 10/2/18 on Consent motion of Cynthia B. Scott. (Attachments: # 1 Additional Exhibit List, # 2 Exhibit 4, # 3 Exhibit 7−J, # 4 Exhibit 100, # 5 Exhibit 101, # 6 Exhibit 102, # 7 Exhibit 106, # 8 Exhibit 108, # 9 Exhibit 132, # 10 Exhibit 133, # 11 Exhibit 134, # 12 Exhibit 116a, # 13 Exhibit 116b, # 14 Exhibit 117, # 15 Exhibit 119a, # 16 Exhibit 119b, # 17 Exhibit 119c, # 18 Exhibit 119d, # 19 Exhibit 119e, Also one thumb drive received and located in the Clerk's office, Titled Cairns and Young video depositions(hnw)
542 ORAL MOTION to Amend 539 Consent MOTION to Amend/Correct Paper Record of Trial Exhibits AND 540 Order on 539 Consent Motion to Amend/Correct by Cynthia B. Scott; Motion to reflect that exhibit 118 was mistakenly typed in when identifying what should have been Exhibit 119 and the record should show that the Correct exhibit number is 119. Motions referred to Judge Joel C. Hoppe. (hnw)
543 ORAL ORDER granting Oral 542 Motion to Amend/Correct. Correcting Exhibit Number to reflect Exhibit 119 as the correct number. Entered by Magistrate Judge Joel C. Hoppe on 10/23/18. (hnw)
544 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Senior Judge Norman K. Moon on 1/2/2019. (hnw)
545 INJUNCTION ORDER. Signed by Senior Judge Norman K. Moon on 1/2/19. (hnw)
546 ORDER finding as moot 498 Motion to Strike pursuant to 544 Findings of Fact and Conclusions of Law. Entered by Senior Judge Norman K. Moon on 1/2/19. (hnw)
547 Oral ORDER finding as moot 390 Motion to overrule privilege objections. Entered by Magistrate Judge Joel C. Hoppe on 1/6/19. (JCH)
548 MOTION for Extension of Time to File Petition for Attorneys' Fees by Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Howard, Theodore)
549 Brief / Memorandum in Support re 548 MOTION for Extension of Time to File Petition for Attorneys' Fees . filed by Cynthia B. Scott. (Howard, Theodore)
550 MOTION to Substitute Party Under Rule 25(d) by Melissa Atkins, Toni Hartlove, Cynthia B. Scott.Motions referred to Judge Joel C. Hoppe. (Castaneda, Brenda)
551 ORDER granting 548 Motion for Extension of Time to File Petition for Award of Fees. Signed by Magistrate Judge Joel C. Hoppe on 1/22/19. (hnw)
552 ORDER granting 550 Motion to Substitute Party. Dr. Paul Targonski added. Paul C. Ohai (M.D., Medical Director, Fluvanna Correctional Center for Women) terminated. Signed by Senior Judge Norman K. Moon on 1/23/19. (jcj)
553 Oral ORDER finding as moot 364 Motion for extension to produce emails. Entered by Magistrate Judge Joel C. Hoppe on 1/23/19. (JCH)
554 MOTION to Alter Judgment Pursuant to Rule 59(e) by Melissa Atkins, Toni Hartlove, Cynthia B. Scott. (Ellis, Shannon)
555 Brief / Memorandum in Support re 554 MOTION to Alter Judgment Pursuant to Rule 59(e) . filed by Melissa Atkins, Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Text of Proposed Order Proposed Amended Order and Injunction)(Ellis, Shannon)
556 MOTION to Alter Judgment by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson, Paul Targonski. (Schnetzler, Nathan)
557 Brief / Memorandum in Support re 556 MOTION to Alter Judgment . filed by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson, Paul Targonski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Schnetzler, Nathan)

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558 RESPONSE in Opposition re 554 MOTION to Alter Judgment Pursuant to Rule 59(e) . filed by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson, Paul Targonski. (Attachments: # 1 Exhibit A)(Londos, Katherine)
559 RESPONSE in Opposition re 556 MOTION to Alter Judgment . filed by Melissa Atkins, Toni Hartlove, Cynthia B. Scott. (Ellis, Shannon)
560 REPLY to Response to Motion re 556 MOTION to Alter Judgment . filed by Eric Aldridge, Harold W. Clarke, Stephen Herrick, A. David Robinson, Paul Targonski. (Schnetzler, Nathan)
561 REPLY to Response to Motion re 554 MOTION to Alter Judgment Pursuant to Rule 59(e) . filed by Melissa Atkins, Toni Hartlove, Cynthia B. Scott. (Attachments: # 1 Exhibit Exhibit 1, # 2 Text of Proposed Order Revised Proposed Amended Injunction)(Ellis, Shannon)

 
 Abigail Turner Litigation Director
Women Prisoners Filed Class Action Lawsuit About Inadequate Medical Care at Fluvanna Prison
Charlottesville, VA – July 24, 2012-- This morning the Legal Aid Justice Center, Wiley Rein LLP of Washington, D.C. and the Washington Lawyers Committee for Civil Rights and Urban Affairs, filed a class action lawsuit on behalf of five women prisoners incarcerated in the Fluvanna Correctional Center for Women. The lawsuit, titled Scott v. Clarke, and filed in the U.S. District Court for the Western District of Virginia, challenges the Virginia Department of Corrections(DOC) and the Armor Correctional Health Services, Inc. for failing to provide constitutionally adequate medical care.
The lawsuit demonstrates that the medical care Armor and the Virginia Department of Corrections provide is so deficient that it violates the Eighth Amendment. The Eighth Amendment to the U.S. Constitution protects prisoners from cruel and unusual punishment and requires adequate health care for prisoners. The courts forbid prisons from giving medical care that shows deliberate indifference to prisoners’ medical problems.
The lawsuit describes health care so deficient that the plaintiffs suffer prolonged physical pain, deterioration of their health and the risk of premature death. Some of the many deficiencies in health care covered in the lawsuit are:
1. Prisoners pay $5 for repeated sick call visits, yet often wait for several months to see a doctor or nurse practitioner to diagnose and treat their medical
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conditions. When they do get access to doctors, medical staff refuse to examine, diagnose, and treat serious illnesses such as those suffered by the plaintiffs: blood clots, unexplained weight loss, suspicious growths, Hepatitis C and MRSA (staph).
2. Medical staff refuse timely referral and treatment for needed specialized care such as degenerative disc disease, severe shortness of breath, recurring throat infections experienced by a woman with severely diminished hearing, and sarcoidosis.
3. Medical staff frequently refuse to carry out specialists’ prescribed courses of treatment.
4. Women with chronic illnesses do not receive adequate care and their health deteriorates. Several of the plaintiffs suffer from chronic medical conditions such as diabetes, hypertension, incontinence, frequent constipation, arthritis and other mobility impairments. The delayed, poor or non-existent treatment leads to worsening of their conditions and, in some instances, to premature death.
5. The defendants provide virtually no physical therapy for severe mobility impairments. Many women at Fluvanna suffer from severe mobility impairments, such as arthritis and paralysis following strokes.
6. Women have died because of the lack of appropriate practices and procedures.
The Department of Corrections (DOC) contracts with Armor Correctional Health Services, Inc. in Florida to provide health care at Fluvanna and four other prisons in Virginia. DOC is responsible for administration and oversight of the contract, and DOC has an affirmative duty to insure the provision of adequate, appropriate health care to the residents of FCCW.
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Armor is a for-profit corporation. The suit demonstrates how Armor is exposing the women at Fluvanna to undue pain, suffering and an increased risk of further illness or premature death. The terms of the DOC contract with Armor create financial incentives and the promise of enhanced profits based on cheaper, reduced levels of care. The lawsuit charges that Armor maintains lower operating expenses, and thus increases its profits by employing a variety of cost-saving tactics at the expense of quality care for the residents of Fluvanna.
Abigail Turner, an attorney with the Legal Aid Justice Center, explained: “ The women suffer extreme pain for prolonged periods as a result of the refusal to provide for these women who have no other options for securing life-saving medical care. Some spend months confined to wheelchairs because medical staff fail to act promptly. Some have died. The human tragedy is almost all the pain and suffering could have been prevented. The suffering stems directly from the policies and practices of a for profit corporation that puts profits over people.”
The plaintiffs have all tried to resolve these issues informally through grievances filed to authorities at Fluvanna Prison and DOC. Deborah Golden, a lawyer with the Washington Lawyers Committee, elaborated: “Each year prisoners at Fluvanna file hundreds of grievances recounting the failure to provide appropriate medical care. Yet DOC has not required Armor to adopt and improve medical care. By its actions and inactions, DOC has shown deliberate indifference to plaintiffs’ serious medical problems and needs.”
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The prisoners ask the court to enjoin the DOC and Armor from failing to provide the plaintiffs and other women at Fluvanna with medical care adequate to protect them from physical injury, illness and undue risk of premature death.
Additional information about the lawsuit is available at www.justice4all.org/our_programs/VIP About the Legal Aid Justice Center The Legal Aid Justice Center provides legal representation for low-income individuals in Virginia who have the least access to legal resources. The LAJC staff of 40 work from offices in Charlottesville, Falls Church, Petersburg, and Richmond. The Virginia Institutionalized Persons (VIP) Project within the LAJC led the effort to bring this lawsuit. See www.justice4all.org/our_programs/VIP for more information. About Wiley Rein LLP Wiley Rein LLP in Washington, D.C. has approximately 300 lawyers and has an additional office in McLean, Virginia. The firm’s lawyers provide counsel and advice in practically every aspect of civil and commercial law. See www.wileyrein.com for more information. About the Washington Lawyers Committee for Civil Rights and Urban Affairs The Committee’s DC Prisoners’ Project advocates for the humane treatment and dignity of all persons convicted or charged with a criminal offense under DC law housed in prisons, jails, or community corrections programs, or living in the community on parole. The Project also works to assist formerly incarcerated people with issues related to their incarceration and strives to promote progressive criminal justice reform. For more information contact: Abigail Turner, Legal Aid Justice Center, 434-977-0553, x. 138, Abigail@justice4all.org Philip Fornaci, Washington Lawyers Committee for Civil Rights and Urban Affairs, 202319-1000, x121, Philip_Fornaci@washlaw.org
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