UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61113-CIV-DIMITROULEAS/SNOW

CODY BARNETT, WILLIAM BENNET, 

CHRISTOPHER BROWN, JESSE 

CALLINS, GREGORY DUNNING, 

BERNARD FRANKLIN, RICARDO 

GONZALES GUERRA, HEATHER LEWIS, 

ROBERT MORRILL, SAMUEL PAULK, 

HELEN PICIACCHI, DARIUS WALKER 

GREAVES and TODD WATSON, on their 

own and on behalf of a class of similarly 

situated persons,

 

Plaintiffs,

DISABILITY RIGHTS FLORIDA, INC., 

Plaintiff,

v.

GREGORY TONY, in his official capacity as 

Sheriff of Broward County, 

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTION FOR ENFORCEMENT AND

MODIFICATION OF CONSENT DECREE

THIS CAUSE is before the Court on Plaintiffs’, Cody Barnett, et al. (the

“Plaintiffs”), Motion for Enforcement and Modification of Consent Decree (the

“Motion”). (ECF No. 130) The Honorable William P. Dimitrouleas referred the

Motion to United States Magistrate Judge Lurana S. Snow for appropriate

disposition or report and recommendation pursuant to 28 U.S.C. § 636. (ECF No.

139) An evidentiary hearing (the “Hearing”) was held before the undersigned via

Zoom on October 21, 2021 pursuant to this Court’s Order. (ECF No. 149) This

matter is now ripe for review.

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I. BACKGROUND

On June 5, 2020, Plaintiffs, for themselves and proposed class members

imprisoned at the Broward County Jail (the “Jail”), filed a complaint and petition

for writ of habeas corpus alleging that the conditions of their confinement violated

their rights under the Eighth and Fourteenth Amendments, the Americans with

Disabilities Act, and the Rehabilitation Act. (ECF No. 142 at 1) Plaintiffs sued

Defendant Gregory Tony, the Sheriff of Broward County, Florida in his official

capacity (the “Defendant”), seeking remedies to address alleged substantial risks of

their contracting COVID-19, and of suffering serious illness or death should they

contract the virus. (ECF No. 142 at 1)

Plaintiffs and Defendant subsequently negotiated a Settlement Agreement

(the “Settlement Agreement”) that included a certification of a Settlement Class,

which was executed on November 30, 2020. (ECF Nos. 130 at 11; 103-1) The

District Court approved the Settlement Agreement on May 13, 2021. (ECF No. 112) 

As part of the Settlement Agreement, Defendants committed to undertaking a

series of measures to protect class members from COVID-19 infection. Plaintiffs

now move to enforce and modify the Settlement Agreement. (ECF No. 130)

First, Plaintiffs argue that Defendant has failed to carry out several of its

obligations as outlined in the Settlement Agreement. (ECF No. 130 at 9) To

establish this, Plaintiffs rely on the testimony of multiple detainees and the

testimony and Report of Dr. Homer Venters (ECF No. 131-8), which was completed

after a two-day inspection of the Jail. (ECF No. 130 at 9) On October 21, 2021, the

Hearing was held before the undersigned via Zoom. At the Hearing, Plaintiff

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presented five witnesses: Dr. Venters, Damar Pink, Roy Williams Simpson, III,

Lemar Thomas, and Quintin Dominique Kersey. (ECF No. 163) 

Dr. Venters, an expert in health and epidemiology, testified at the Hearing as

to what he witnessed at the Jail during his inspection. Dr. Venters testified that

while at the time of his inspection there were procedures in place “to ask people

about COVID symptoms and check their temperature on the way in the door,”

Defendant was not testing newly admitted detainees for COVID-19 at intake. (ECF

No. 163 at 22) He continued, “I don’t believe that there was a symptoms screen for

people going to court or returning from court and I don’t believe that there was a

test.” Id. at 39. Similarly, Dr. Venters testified that he did not believe that

individuals were being tested prior to release into the community unless that

individual was being released to certain community programs. Id. at 40. Nor did he

believe that Defendant was testing detainees prior to inter-facility transfers. Id. at

42. Dr. Venters also testified that to his knowledge, there was no systematic testing

of staff for COVID-19. Id. at 30. Dr. Venters found this to be problematic because

staff are generally considered to be the “primary vectors” for COVID-19 to infiltrate

correctional facilities. Id. at 29-30. 

Next, Dr. Venters testified that newly admitted detainees could spend

anywhere from one to four days at a transitional area called a “bus stop” prior to

any cohorting and that those in need of mental health or medical services were

“going straight into these units” and were not subject to a 14-day cohort period prior

to going to the infirmary or mental health unit. Id. at 32. Based on conversations

with detainees and staff, Dr. Venters determined that “it does not appear that all

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high-risk people are identified at intake.” Id. at 63. Additionally, Dr. Venters

expressed his understanding that Defendant was not serially re-testing or

appropriately monitoring for COVID-19 symptoms for detainees in quarantine units

after initial intake. Id. at 34-35.

Finally, Dr. Venters testified about several best-practices that Defendant

could implement to lower the risk of a COVID-19 outbreak and opined on the

COVID-19 vaccination rate at Defendant’s facilities, deeming it lower than

comparable correctional facilities with which he has worked. Id. at 46-47. In

response to questions posed by the undersigned to Dr. Venters regarding whether

any of those facilities with higher vaccination rates were located in states such as

Florida or Texas where vaccine mandates are prohibited, Dr. Venters responded

that none of those facilities was located in such a state. Id. at 56-57. Dr. Venters

did not know whether the lower vaccine rate in this case was reflective of the larger

community outside of the Jail. Id.

Damar Pink, an inmate at one of Defendant’s facilities, testified as to his

personal experiences with COVID-19 practices in the Jail. He stated that at least

some detainees are only screened, and not tested, for COVID-19 while displaying

certain symptoms such as coughing and sweating. Id. at 95, 106-108. Mr. Pink

further testified that he was not automatically re-tested when his roommate’s

COVID-19 test came back positive while he was housed in a quarantine unit. Id. at

101-105. Instead, Mr. Pink had to put in a sick call request in order to get a second

test. Id. Additionally, Mr. Pink testified that he was not screened or tested for

COVID-19 prior to being transferred from one unit to another within the same

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facility. Id. at 96. Regarding replacement and availability of masks, Mr. Pink

testified that the longest he had gone without mask replacement was about three

months. Id. at 111. 

Roy Williams Simpson, III, another detainee, testified that he was not tested

for COVID-19 or temperature checked before attending court visits. Id. at 176. 

Similarly, he testified that he was not tested or temperature checked before being

transferred to a new unit within the same facility. Id. at 124-125. Mr. Simpson also

stated that he was tested only once while in a quarantine unit. Id. at 127-128. Mr.

Simpson described in detail his medical conditions, including COPD, hypertension,

and hepatitis C. Id. at 125. Mr. Simpson testified that despite these conditions, he

was not temperature checked or otherwise monitored for COVID-19 on a regular

basis. Id. at 175-176. Regarding replacement and availability of masks, Mr.

Simpson related that he was given two cloth masks approximately three weeks

before the Hearing; prior to that time, he only had one cloth mask. Id. at 178-180. 

Similarly, he testified that the disposable medical mask that he wears has not been

replaced since August. Id.

Lemar Thomas, the third detainee to testify, stated that during the intake

process he was never tested or screened for symptoms. Id. at 138-139. Nor was he

re-tested in a quarantine unit after another detained person had tested positive for

COVID-19. Id. at 153. Mr. Thomas also testified that he was not tested or screened

before any of the five times that he was transferred to different facilities or units.

Id. at 164. Furthermore, Mr. Thomas described his experience sleeping on a plastic

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bed called a “boat” prior to his 14-day cohort period, where it was practically

impossible to be socially distanced from others. Id. at 139-141. 

Quintin Dominique Kersey, a detainee and Plaintiffs’ final witness, testified

that he was not tested or screened for symptoms during the intake process. Id. at

190-191. Mr. Kersey also stated that he was not tested or screened before or after

any of his multiple court appearances. Id. at 196, 198, 200, 201. Likewise, Mr.

Kersey testified that he was not tested prior to being transferred to different

facilities or units. Id. at 191-195. Mr. Kersey also described his experience of being

taken to the infirmary, and then the main jail, before his 14-day cohort. Id. at 191-

192. 

Plaintiffs rely on the testimony of these witnesses primarily in support of

their request for enforcement of the Settlement Agreement. Plaintiffs argue, in

addition, that the Settlement Agreement should be modified because it was limited

by the knowledge that was available in November of 2020, before the COVID-19

vaccines were available, and prior to the current “Delta” outbreak. (ECF No. 130 at

10) Plaintiffs note that currently, only 28.2% of detainees within the Jail are

vaccinated, which is “substantially lower than the average rate both in the Broward

community and among correctional facilities nationwide.” Id. Accordingly,

Plaintiffs believe Defendant should be required to do more to increase the

vaccination rates of both prisoners and prison staff. 

To illustrate the significance of the Motion, Plaintiffs assert that the result of

Defendant’s failures combined with changed circumstances have led to a swell in

infections from one detected positive COVID-19 case at the Jail on July 18, 2021, to

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129 cases by September 20, 2021. (ECF No. 130 at 8-9) It is important to note,

however, that through the entirety of the Delta variant outbreak, no detainee in

Defendant’s custody has died from COVID-19. (ECF 163 at 59)

II. DISCUSSION

A. Enforcement 

Defendant argues that Plaintiffs’ motion is procedurally improper because

they believe Plaintiffs must first establish by clear and convincing evidence that

Defendant has violated a prior Court order, after which a show cause order would

be entered by the Court. (ECF No. 142 at 8) Contrary to Defendant’s position,

courts recognize a distinction between a motion to “punish violators for contempt”

and a motion “to enforce settlement agreements in actions pending before them.” S.

Beach Suncare, Inc. v. Sea & Ski Corp., No. 98-1114-CIV, 1999 WL 350458, at *5-6

(S.D. Fla. May 17, 1999). “Two different standards, therefore, apply.” Id. at *5. 

Defendant is correct that clear and convincing evidence of a violation of a consent

decree is required for civil contempt. However, “[o]nce entered, a consent decree

may be enforced” by the court. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 440

(2004). This inherent power to enforce a “settlement agreement between the parties

inheres in the district court’s role as supervisor of the litigation, and the exercise of

that power is entrusted to the court’s sound discretion.” S. Beach Suncare, 1999 WL

350458, at *6.

The Court’s enforcement power is governed by state contract law since a

settlement agreement “is merely a contract between parties to litigation.” Id.; See

also Frulla v. CRA Holdings, Inc., 543 F.3d 1247, 1252 (11th Cir. 2008). Unlike

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contempt proceedings, courts “may enforce a settlement agreement on proof of

breach by a preponderance of the evidence.” S. Beach Suncare, 1999 WL 350458, at

*11. Moreover, none of the cases cited by Defendant suggest that a party seeking to

enforce a settlement agreement must do so through a contempt proceeding. See,

e.g., Peery v. City of Miami, 977 F.3d 1061 (11th Cir. 2020); Reynolds v. Roberts,

207 F.3d 1288 (11th Cir. 2020).

Although Plaintiffs cite in their Motion cases relating to civil contempt, they

make clear that they are not requesting the Court to hold Defendant in contempt at

this time. (ECF No. 130 at 35) Plaintiffs seek only enforcement and modification of

the Settlement Agreement. Additionally, the Settlement Agreement specifically

contemplates such a motion for enforcement and distinguishes it from a motion for

contempt. (ECF No. 142-1 at ¶ 24) Accordingly, the undersigned made the following

ruling at the outset of the Hearing: 

And I will say, before we get started, the Plaintiffs have stated

unequivocally that they are not seeking an order of contempt of court. 

Therefore, the standards for contempt are not applicable here. We’re

not going to consider holding the Defendants in contempt. Therefore,

the standard for proof of any violation of agreement is by a

preponderance of the evidence. 

(ECF No. 163 at 5-6)

Defendant acknowledged the Court’s ruling on the standard of proof but did

not waive its procedural objection and declined to present any evidence at the

Hearing. Id. at 10. The undersigned now reaffirms the Hearing ruling that

Plaintiffs must prove a violation of the Settlement Agreement by a preponderance

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of the evidence. See S. Beach Suncare, 1999 WL 350458, at *11.1

 Also, while much

of the testimony of Dr. Venters focused on best practices to stop the spread of

COVID-19, the Court must address only the measures to which the parties agreed. 

With the Settlement Agreement as the principal binding document,

Defendant argues that CDC Guidance sets forth guiding principles, not “contractual

mandates” as presented by Plaintiffs. (ECF No. 165 at 6-7) The undersigned is not

persuaded by this argument because the Settlement Agreement expressly

incorporates, and mandates compliance with CDC Guidance for certain categories of

actions. In each area where the Settlement Agreement incorporates CDC Guidance,

such guidance on that topic becomes binding on the parties. 

Plaintiffs’ enforcement requests can be divided into eighteen categories:

testing and screening at admission, testing before release, symptom screening

detained persons re-entering jail, re-testing quarantine units, testing and screening

detainees prior to transfers, testing symptomatic and exposed detainees, screening

staff, separating quarantine and cohort units, contact tracing, cohorting upon

admission, re-testing and monitoring during cohorting, identifying medically

vulnerable detainees, social distancing of medically vulnerable detainees, medical

1. The undersigned similarly finds meritless Defendant’s argument that Plaintiffs did

not act in good faith in filing the instant Motion on an expedited basis. Plaintiffs’

request for expedited briefing was not “buried” in the Motion, as Defendant contends,

but is set forth on the very first page. And the fact that the Motion came within one

day of the parties’ “impasse” date does not demonstrate a lack of good faith. Plaintiffs

knew ten days before that date that Defendant was unwilling to act on at least one of

the two primary issues raised in the Motion, and Plaintiffs were entitled to begin

drafting the Motion before impasse was reached on both issues. (ECF 141 at 1) 

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isolation of symptomatic detainees, social distancing, personal protective

equipment, availability and replacement of masks, and educational information. 

Testing and screening at admission

Paragraph 44 of the Settlement Agreement states that Defendant “shall

comply with CDC Guidance for correctional and detention facilities that expand

testing beyond that provided in this Agreement.” (ECF No. 154-9 at 13) Since

February of 2021, CDC Guidance has stated that detention facilities should “[t]est

incoming incarcerated/detained persons, including those returning after more than

24 hours away from the facility.” (ECF No. 154-2 at 7) Despite this requirement, for

the week ending August 25, 2021, Defendant reported that it had admitted 499 new

people to the Jail, but tested only 173. (ECF No. 131-15) This discrepancy alone

appears to establish noncompliance with CDC Guidance as to testing, and

therefore, with Paragraph 44 of the Settlement Agreement. Plaintiffs also

presented the testimony of Dr. Venters who testified that Defendant was not testing

newly admitted detainees for COVID-19 at intake at the time of his inspection.

(ECF No. 163 at 22) Similarly, both Mr. Thomas and Mr. Kersey corroborated this

finding with their own personal experiences at intake. 

Defendant claims that it did not begin testing all incoming individuals until

August 9, 2021, which means that Defendant, by his own admission was

noncompliant with the Settlement Agreement for at least six months. Although

Eleventh Circuit caselaw has not directly addressed this issue, the Seventh Circuit

has held that district courts can find a party in contempt because of past violations

of a settlement agreement, noting that “it makes sense for the court to be able to

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enter orders that help ensure both that past violations don’t repeat and that

ongoing violations cease.” Holmes v. Godinez, 991 F.3d 775 (7th Cir. 2021). 

Similarly, at least one district court has found that “coming close to compliance at

least some of the time” is not tantamount to compliance with a settlement

agreement. R.J. v. Mueller, 2020 WL 4934989, at *5 (N.D. Ill. Aug. 24, 2020). These

cases are instructive even though Plaintiffs are seeking enforcement rather than a

finding of contempt. Accordingly, the undersigned finds that Plaintiffs have shown

by a preponderance of the evidence that the Defendant has not complied with CDC

Guidance with regard to testing of inmates upon admission, and Defendant shall

conduct COVID-19 tests on all individuals at intake. 

Testing before release

CDC Guidance also states that the facility should “[t]est

incarcerated/detained persons leaving the facility as close to the day of the visit

(e.g., medical trips, court appearances, community programs) or release (whether

into the community or to a halfway house or other transitional location).” (ECF No.

154-2 at 7) (emphasis added) Defendant concedes that he does not test individuals

being released into the community but contends that this is acceptable because the

Settlement Agreement “neither addresses nor requires” such testing. (ECF No. 142

at 12) However, because the Settlement Agreement, at Paragraph 44, expressly

requires that Defendant comply with CDC Guidance with regard to testing, the

requirement of testing individuals before release into the community is

incorporated into the Agreement. 

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Additionally, Dr. Venters testified that he did not believe that detainees

leaving the facilities for court visits were being screened or tested before these

visits. (ECF No. 163 at 39-40) The experiences of Mr. Kersey and Mr. Simpson

further support that no such testing has been taking place. This failure to test

before release into the community and before court visits also is in direct conflict

with the CDC Guidance as incorporated by Paragraph 44 of the Settlement

Agreement. The undersigned therefore finds that Defendant has not complied with

the Settlement Agreement in regard to testing at the time of release. Defendant

shall test for COVID-19 all detainees being released or otherwise leaving the Jail,

such as to attend court appearances. Defendant shall utilize rapid tests to ensure

that exits from the Jail will not be delayed. 

Symptom screening detained persons re-entering jail

Paragraph 41 of the Settlement Agreement requires Defendant to “perform

symptom screening and temperature check[s] consistent with CDC

recommendations prior to person’s transfer.” (ECF 154-9 at 12) While the

testimony of Dr. Venters, Mr. Kersey, and Mr. Simpson also tended to show that

detainees were not symptom screened for COVID-19 before returning to the Jail

from a court visit, such screening is not required by the Settlement Agreement. 

Paragraph 41 only addresses transfers and requires testing prior to any such

transfer. Even if a court visit could be construed as a transfer under this provision,

screening for individuals returning from such visits is not required. The

undersigned finds that Defendant is in compliance with the Settlement Agreement

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in regard to symptom screening detained persons re-entering the Jail, and no

additional action by Defendant is necessary.

Re-testing quarantine units

Paragraph 48 of the Settlement Agreement requires Defendant to

“[i]mplement CDC-compliant cohorting, quarantining, and medical isolation

procedures for those who test positive, are symptomatic, or those who have come

into close contact with such persons.” (ECF No. 154-9 at 14) As previously noted,

Paragraph 44 also requires that Defendant implement COVID-19 testing that is

CDC-compliant. The CDC Guidance states “[i]f quarantine cohorts are used (i.e., if

people who are exposed are quarantined together rather than individually due to

space constraints), facilities should conduct serial re-testing of the quarantined

cohort.” (ECF No. 154-2 at 6) This cohort testing is to be conducted “every 3-7 days

regardless of their COVID-19 vaccination status until testing identifies no new

cases in the cohort for 14 days since the most recent positive result.” Id.

Dr. Venters testified that it was his understanding that Defendant was not

serially re-testing individuals in quarantine units in compliance with the CDC

Guidance. (ECF No. 163 at 87) The testimony of Mr. Pink, Mr. Simpson, and Mr.

Thomas confirms that Defendant has failed to test detainees in quarantine units

every 3-7 days until there are no new cases of COVID-19 in the cohort for 14 days. 

The undersigned finds that Defendant failed to comply with the Settlement

Agreement in regard to re-testing quarantine units. Accordingly, Defendant shall,

in accordance with CDC Guidance, ensure that individuals in quarantine units are

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tested for COVID-19 every 3-7 days until testing identifies no new cases in the

quarantine unit for 14 days from the most recent positive result.

Testing and screening detainees prior to transfers

As noted, Paragraph 44 of the Settlement Agreement requires that

Defendant implement COVID-19 testing that is CDC-compliant and Paragraph 41

requires symptom screening and temperature checks that are CDC-compliant prior

to a person’s transfer. The CDC Guidance advises that facilities should “implement

movement-based screening testing to prevent the introduction of the virus into the

facility and to prevent transmission to another facility or into the community.”

(ECF No. 154-2 at 7) Specifically, the Guidance recommends that facilities “[t]est

incarcerated/detained persons before transfer to another correctional/detention

facility. Wait for a negative test result before the transfer.” Id. Moreover, the CDC

Guidance also recommends “verbal screening and temperature checks for

incarcerated/detained persons . . . who are transferred to another facility or released

from custody.” (ECF No. 154-3 at 25)

Notably, the CDC does not address intra-facility transfers. Therefore,

witness testimony regarding the lack of tests and screening prior to transfers to

different units within the same facility does not establish a breach of the Settlement

Agreement. However, the testimony of Mr. Thomas and Mr. Kersey demonstrates

that not all detainees have been tested and screened for COVID-19 prior to being

transferred to separate facilities. In fact, Mr. Thomas testified that he had been

transferred to four different facilities and had only been screened or tested prior to

one of those transfers. (ECF No. 163 at 163-164) The undersigned finds that

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Defendant has not complied with the Settlement Agreement in regard to testing

and screening prior to transfers to different facilities, and such testing prior to such

transfers shall henceforth take place. 

Testing symptomatic and exposed detainees

Paragraph 43 of the Settlement Agreement requires Defendant to “[t]est all

of the following for COVID-19 infection: (1) prisoners and staff who display

symptoms; [and] (2) prisoners who are exposed to a person who has tested positive

for COVID-19.” (ECF No. 154-9 at 13) Again, all testing must also comply with

CDC Guidance pursuant to Paragraph 44. CDC Guidance states that “close

contacts (people who have been within 6 feet of persons with COVID-19 for a

combined total of 15 minutes or more during a 24-hour period) should be tested

regardless of their COVID-19 vaccination status.” (ECF No. 154-2 at 5) The CDC

further recognizes that in correctional facilities, close contacts may be entire units.

Id. 

All of the evidence put forth by Plaintiffs serves to establish only delayed

testing and disputes over whether a detainee has shown sufficient COVID-19

“symptoms” to warrant a test. The undersigned recognizes that there may be a

practical disparity between a medically defined symptomatic person and a

detainee’s nonmedical understanding of what constitutes a symptomatic person. 

Without a clear definition in the Settlement Agreement of what it means to “display

symptoms” for the purpose of warranting a test, the undersigned finds that

Plaintiffs have not shown by a preponderance of the evidence that Defendant failed

to comply with testing symptomatic and exposed detainees. Therefore, Plaintiffs’

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request for enforcement of testing symptomatic and exposed detainees should be

denied.

Screening staff

CDC Guidance alerts facility administrators that they “should consider

including staff in broad-based testing efforts.” (ECF No. 154-2 at 8) Unlike the

provisions discussed above, the CDC here only suggests that testing staff be

considered. Plaintiffs have presented no evidence to establish that Defendant did

not consider its decision when determining whether and how often to test and

screen staff. Therefore, the undersigned finds that any failure by Defendant to test

and screen staff complies with the Settlement Agreement and Plaintiffs’ request for

enforcement of screening staff should be denied.

Separating quarantine and cohort units

Plaintiffs also take issue with the fact that there is no solid wall separating

the cohort and quarantine units at Defendant’s Conte Facility. Instead, owing to

the facility’s layout, these two units are situated 20-25 feet apart and separated by

a “stack of chairs and tables.” (ECF No. 130 at 30) Paragraph 48 of the Settlement

Agreement requires Defendant to “[i]mplement CDC-compliant cohorting,

quarantining, and medical isolation procedures for those who test positive, who are

symptomatic, or those who have come into close contact with such persons.” (ECF

No. 154-9 at 14) CDC Guidance calls for facilities to identify “separate physical

locations (dedicated housing areas and bathrooms)” to isolate detainees with

COVID-19, suspected of COVID-19, and close contacts of those with COVID-19.

(ECF No. 154-3 at 3) 

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However, the CDC further notes that facilities “without sufficient space to

implement effective medical isolation, should coordinate with local public health

officials” to ensure a safe environment. (ECF No. 154-3 at 14) The CDC Guidance

also recognizes that housing individuals “[s]eperately, in single cells with solid

walls” is not always practicable in a jail setting and the Guidance allows facilities

without sufficient space to house such individuals as a cohort, in cells “without solid

walls or solid doors.” (ECF No. 154-3 at 19-20) Plaintiffs have put forth no evidence

suggesting that Defendant has sufficient space to isolate detainees in cells with

solid walls. In fact, the evidence shows that the Conte Facility’s layout precludes

such separation. (ECF No. 143-1 at 5-6) The Court finds that Plaintiffs have not

established by a preponderance of the evidence that Defendant failed to comply

with the Settlement Agreement requirement to seperate quarantine and cohort

units. Accordingly, Plaintiffs’ request for enforcement of separating quarantine and

cohort units should be denied.

Contact tracing

Despite Plaintiffs’ proffered evidence tending to show that Defendant

periodically puts entire units in quarantine following a positive COVID-19 test in

that unit, neither the Settlement Agreement nor CDC Guidance prohibits such

action. CDC Guidance makes clear that any medical isolation should be nonpunitive. (ECF No. 154-3 at 29) Simultaneously, the CDC recognizes that entireunit lockdowns are often inevitable in correction facilities owing to the inherent

close contact among detainees within a particular unit and permits such entire-unit

lockdowns. (ECF No. 154-3 at 20) Plaintiffs’ evidence falls short of establishing that

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Defendant’s use of entire-unit quarantines instead of some other form of contact

tracing violates the Settlement Agreement. Plaintiffs’ request for enforcement of

contact tracing in a form other than whole unit lockdowns should therefore be

denied. 

Cohorting upon admission

Paragraph 49 of the Settlement Agreement requires Defendant to cohort all

newly-admitted persons in separate housing units for 14 days, “except for prisoners

who require mental health or medical services necessitating their being moved to

the infirmary, where they will thereafter be cohorted for 14 days.” (ECF No. 154-9

at 15) Plaintiffs point to the fact that Jail staff reported to Dr. Venters that a

newly-admitted person going to the infirmary would not go through the normal

cohorting process. (ECF No. 130 at 28) Additionally, the testimony of Mr. Thomas

and Mr. Kersey establishes that the 14-day cohort period may be delayed for people

who require mental health or medical services. Importantly, both Mr. Thomas and

Mr. Kersey testified that they eventually had a 14-day cohort period. The

undersigned finds that delaying the 14-day cohort period for detainees requiring

specific services is consistent with the Settlement Agreement. The undersigned

accordingly finds that Plaintiffs have failed to carry their burden of demonstrating

that Defendant has not complied with the Settlement Agreement in regard to

cohorting upon admission and no enforcement action is required.

 Re-testing and monitoring during cohorting

Paragraph 49 of the Settlement Agreement also requires Defendant to

“monitor [newly-admitted detainees] on a daily basis for COVID-19 infection before

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they are transferred to units in other Jail facilities.” (ECF No. 154-9 at 15) 

Additionally, CDC Guidance states that if incoming detainees undergo intake

quarantine, facilities should “consider re-testing every 3-7 days.” (ECF No. 154-2 at

7) Here, the CDC only recommends considering such re-testing. Plaintiffs have put

forth no evidence suggesting that Defendant did not consider re-testing such

individuals during cohorting. The testimony regarding Defendant’s final decision

not to serially re-test does not support a conclusion that re-testing was not

considered. Accordingly, the undersigned finds that Plaintiffs failed to establish

non-compliance with the Settlement Agreement in regard to re-testing and

monitoring during cohorting and Plaintiffs’ request for enforcement of this

procedure must be denied.

Identifying medically vulnerable detainees

Paragraph 34 of the Settlement Agreement requires Defendant to “[i]dentify

all persons who are vulnerable to serious illness or death because of COVID-19

infection, including all medically vulnerable persons.” (ECF No. 154-9 at 10) 

Paragraph 43 further requires that detainees so identified be tested within 72 hours

of being detained (ECF No. 154-9 at 13) and Paragraph 64 requires that these

individuals be monitored on a daily basis, including twice-daily temperature checks

(ECF No. 154-9 at 20). 

Despite these requirements, Jail staff admitted to Dr. Venters at the time of

his inspection that Defendant had not even attempted to identify “medically

vulnerable” detainees. (ECF No. 130 at 31) While the undersigned is wary of

entering the realm of medical determinations, Mr. Simpson’s testimony regarding

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his age and several medical conditions including COPD, hypertension, and hepatitis

C strongly suggests that Mr. Simpson should have been identified by Defendant as

medically vulnerable and appropriately monitored. Mr. Simpson’s testimony

establishes that he was not monitored on a daily basis pursuant to Paragraph 64.

(ECF No. 163 at 176) Accordingly, the undersigned finds that Plaintiffs have

established by a preponderance of the evidence that Defendant has not identified

medically vulnerable detainees in violation of Paragraph 34, 43, and 64 of the

Settlement Agreement. Defendant shall maintain a list of Medically Vulnerable

detainees and conduct COVID-19 symptoms screening and temperature checks of

such detainees. 

Social distancing of medically vulnerable detainees

Paragraph 35 of the Settlement Agreement then requires Defendant to

“[h]ouse medically vulnerable persons so they can maintain social distancing of at

least six feet from others when possible . . . or, at a minimum, not in cells with other

prisoners whose COVID-19 status is unknown or with those who have pending tests

or are symptomatic.” (ECF No. 154-9 at 10) However, Paragraph 35 also recognizes

that six-foot distancing is not always practicable in a correctional setting, and

contains an exception to the social distancing requirement which permits Defendant

to document the instances where such distancing cannot be accomplished. Id. Since

the undersigned has found that Defendant has failed to identify medically

vulnerable individuals, it follows that Defendant also has failed to comply with the

social distancing requirement of Paragraph 35 of the Settlement Agreement. Where

medically vulnerable detainees have not even been identified, the exception which

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permits documentation of specific instances where compliance is impossible cannot

be applied. To remedy Defendant’s failure to comply with Paragraph 35, Defendant

shall maintain a list of Medically Vulnerable detainees and track the housing

location of such detainees.

Medical isolation of symptomatic detainees

Paragraph 39 of the Settlement Agreement requires Defendant “[h]ouse

symptomatic persons in medical isolation in individual cells in separate housing

units, not in cells or on tiers with positive or other symptomatic persons.” (ECF No.

154-9 at 12) The undersigned hesitates to rely on the detainee witnesses’

nonmedical identifications of symptomatic persons. Without a clear definition of

what it means to be a “symptomatic person” sufficient to warrant medical isolation

under the terms of the Settlement Agreement, the undersigned finds that Plaintiffs

have not established by a preponderance of the evidence that Defendant failed to

comply with the Agreement with regard to medical isolation of symptomatic

detainees. Plaintiffs’ request for enforcement in this area should be denied.

Social distancing of detainees who are not medically vulnerable

Paragraph 36 requires Defendant to “[i]mplement a housing plan that would

allow, where possible, prisoners to maintain six-feet of social distancing from others

while in their cells.” (ECF No. 154-9 at 11) The language “where possible” makes

clear that six-foot distancing in not a mandate, but rather is a flexible guideline

which takes into account the circumstances within the facility at a given time. 

Plaintiffs produced no evidence to establish that social distancing is currently

possible in Defendant’s facilities. Importantly, Paragraph 36 goes on to carve out

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specific exceptions for this general rule stating, “Defendant shall document all

instances where prisoners could not maintain a distance of six feet due to a lack of

available bed space.” Id. Defendant asserts that the use of “boats” are a temporary

measure due to the lack of available space. Plaintiffs have offered no evidence that

contradicts this assertion, and instead rely solely on the fact that “boats” are being

used. As Paragraph 36 expressly takes into account available bed space, the use of

“boats,” standing alone, is insufficient to show that Defendant violated the

Settlement Agreement. 

Similarly, Paragraph 37 of the Settlement Agreement requires Defendant to

“[l]ay out tape markers at six-foot increments in areas where persons are required

to line up or congregate for medications, security searches of cells and housing

units, recreation, and food service.” (ECF No. 154-9 at 11) Plaintiffs produced

evidence tending to show that 6-foot markers are absent in some areas of

Defendant’s facilities, but this evidence did not show that these areas are locations

where markers are required. The undersigned finds that Plaintiffs have not

established by a preponderance of the evidence that Defendant failed to comply

with the social distancing requirement of the Settlement Agreement, and no

additional action by the Defendant is required.

Personal protective equipment (“PPE”)

Plaintiffs allege that Defendant did not provide or require adequate PPE for

staff. Specifically, Plaintiffs first take issue with some staff members wearing neck

gaiters as face coverings. Paragraph 54 of the Settlement Agreement requires

Defendant to “[p]rovide Jail staff with face coverings and other PPE and supplies

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appropriate to their duties in the Jail as recommended by CDC Guidance, including

N95 respirators, surgical masks, protective eye-wear, gloves, and/or gowns/coveralls

for those working in units with prisoners who have tested positive or are

symptomatic.” (ECF No. 154-9 at 16) CDC Guidance for correctional facilities does

not explicitly address the use of neck gaiters, but does identify certain face

coverings that are not recommended, such as those containing valves. (ECF No.

154-3 at 29) Instead, the CDC Guidance states that masks “cover the nose and

mouth” (ECF No. 154-3 at 29), which includes gaiters. Beyond this, the CDC

Guidance on “Your Guide to Masks” linked in the Guidance for correctional

facilities affirmatively contemplates and permits the use of neck gaiters.2

Accordingly, the undersigned finds that the use of gaiters complies with the

Settlement Agreement. 

Plaintiffs also take issue with the apparent failure of some staff members

working in quarantine units to use PPE gowns. The undersigned notes that the

Settlement Agreement merely requires Defendant to provide staff with proper PPE. 

While Plaintiffs’ evidence tends to show that staff often did not wear PPE gowns,

there is no evidence to suggest that Defendant failed to provide staff with the

proper PPE. Nothing in the Settlement Agreement can be read to require staff to

wear PPE gowns in quarantine units at all times. The undersigned finds that

2. CDC Guidance on masks can be found at Your Guide to Masks, CDC

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-facecoverings.html (last updated October 25, 2021), and is incorporated in the CDC

Guidance for correctional facilities. (See ECF No. 154-2)

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Plaintiffs have failed to establish that Defendant has not complied with the PPE

requirements in the Settlement Agreement and no further action should be ordered.

Availability and replacement of masks

Paragraph 52 of the Settlement Agreement requires Defendant to provide

detained persons “with two face coverings that can be used as well as sanitized or

replaced per manufacturers’ instructions.” (ECF No. 154-9 at 15) Some detainees

testified that they were only provided with one mask at certain times during the

pandemic and that soiled masks were not promptly replaced by Defendant. For

example, Mr. Simpson testified that he received two cloth masks three weeks before

the Hearing, but prior to that point he was only provided with one cloth mask. (ECF

No. 163 at 178-180) Mr. Pink further testified that he had gone about three months

without having his set of masks replaced. (ECF No. 163 at 111) Most concerning,

however, is the sworn declaration of detainee John Vickers stating, “[i]f a disposable

mask gets soiled or broken between [the predetermined time of replacement], the

Jail often tells inmates that they do not have enough supply to replace the mask.”

(ECF No. 131-9 at 3) The undersigned finds that consistent with the Settlement

Agreement, Defendant should ensure that detainees are in possession of two face

coverings in usable condition at all times. 

Educational information

Finally, Paragraph 61 of the Settlement Agreement requires Defendant to

educate prisoners on the latest CDC and other public health guidance regarding

COVID-19. (ECF No. 154-9 at 18) Currently, CDC Guidance unambiguously

instructs that the best practice to prevent COVID-19 infection and transmission is

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to receive one of the three FDA-authorized COIVD-19 vaccines. (See, e.g., ECF No.

154-2 at 2) Plaintiffs point to the low vaccination rate at Defendant’s facilities and

anecdotal experiences of several detainees, who claim not to have received adequate

information on the vaccines, in order to establish that Defendant is not in

compliance with Paragraph 61 of the Settlement Agreement.

Contrary to Plaintiffs’ position, from the time the CDC began encouraging

vaccination, Defendant has posted educational materials on COVID-19 prevention

and vaccination throughout the Jail, and included in those materials documents

which Plaintiffs requested be made available to detainees. Defendant also made at

least three loudspeaker announcements per day regarding the availability of

vaccinations, and provided in-person education on vaccination through its nurses

and healthcare professionals during chronic care visits and routine contact. (ECF

No. 142 at 15-16) Moreover, Plaintiffs concede that Defendant has taken steps to

encourage vaccination. (ECF No. 130 at 40) The undersigned finds that Defendant

adequately informed detainees of the available COVID-19 vaccines and is in

compliance with Paragraph 61 of the Settlement Agreement. Therefore, Plaintiffs’

request for enforcement in regard to providing detainees with additional

educational information regarding the available COVID-19 vaccines should be

denied. 

B. Reporting requirements and independent monitor

Plaintiffs further argue that Defendant’s alleged noncompliance warrants

“imposing regular and frequent reporting requirements and the appointment of an

independent monitor to oversee compliance.” (ECF No. 130 at 36) As previously

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noted, Plaintiffs concede that they “ask only for a detailed enforcement order” at

this time, and not an order holding Defendant in civil contempt. (ECF No. 130 at

35) However, Plaintiffs analogize to contempt cases to substantiate their argument

that sanctions such as appointing a monitor and requiring more stringent reporting

is appropriate in the instant case. 

Pursuant to Paragraph 19 of the Settlement Agreement, Plaintiffs and their

retained experts are already entitled to conduct reasonable monitoring of the Jail’s

compliance with the Settlement Agreement. Plaintiffs contend that this is

insufficient to ensure compliance because Plaintiffs’ counsel are limited in its ability

to monitor due to “the correctional and pandemic context.” (ECF No. 130 at 36) The

record in this case undercuts Plaintiffs’ argument. Plaintiffs in fact were able to

monitor Defendant’s compliance through the inspection conducted by their expert,

Dr. Venters, enabling Plaintiffs to file the instant Motion. Notably, Dr. Venters also

notes in his report that Defendant’s “leadership was very forthcoming during

inspection and appeared eager to provide information as we discussed COVID-19

issues.” (ECF No. 131-8 at 31) The undersigned finds no reason to either impose

heightened reporting requirements or appoint a monitor at this time. 

C. Modification

The Eleventh Circuit has cautioned that “[a] party seeking to modify a

consent decree has a high hurdle to clear and the wind in its face.” Sierra Club v.

Meiburg, 296 F.3d 1021, 1034 (11th Cir. 2002). Fed. R. Civ. P. 60(b)(5) permits

courts to relieve a party from a prior order when “applying it prospectively is no

longer equitable.” “Rule 60(b)(5) ‘encompasses the traditional power of a court of

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equity to modify its [consent] decree in light of changed circumstances.’” Griffin v.

Sec’y, Fla. Dep’t of Corr., 787 F.3d 1086, 1090 (11th Cir. 2015) (quoting Frew ex rel.

Frew v. Hawkins, 540 U.S. 431). Courts should apply a “flexible standard” when

applying Rule 60(b)(5) to modify consent decrees involving institutional reform.

Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 368 (1992). 

Applying this standard, modification is appropriate where the party seeking

modification carries “the burden of establishing that a significant change in facts or

law warrants revision of the decree and that the proposed modification is suitably

tailored to the changed circumstances.” Rufo, 502 U.S. at 383. One way that the

moving party may be able to establish a significant change in circumstances

warranting modification is by showing that the “consent decree has failed to achieve

its purpose.” F.T.C. v. Garden of Life, Inc., No. 06-80226-CIV, 2012 WL 1898607, at

*3 (S.D. Fla. May 25, 2012). However, “consent decrees generally do not have

overarching purposes.” Sierra Club, 296 F.3d at 1031. Moreover, “[m]odifications to

consent decrees are rarely granted ‘because consent decrees are normally

compromises between parties with opposing positions in which each party gives up

their rights to litigation and to prove their position.’” F.T.C., 2012 WL 1898607, at

*2 (citing Sierra Club, 296 F.3d at 1032). Therefore, “consent decrees should be

interpreted as written.” Id.

Unmistakably, a party seeking modification of a consent decree has a high 

burden to meet. Sierra Club, 296 F.3d at 1034. Plaintiffs’ request for modification is

based on the contention that circumstances have changed since the Settlement

Agreement was entered. Specifically, the circumstances that Plaintiffs allege have

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changed are that three FDA-approved COVID-19 vaccines are now available and a

new, more contagious variant of COVID-19 has developed since November of 2020

when the Settlement Agreement was executed by the parties. (ECF No. 130 at 10) 

Although the Settlement Agreement was executed in November of 2020, the

Settlement Agreement was not approved by the Court until May 13, 2021, at which

point all three COVID-19 vaccines were widely available. Had Plaintiffs been

concerned about vaccinations, they certainly could have bargained for the inclusion

of such a provision in the Settlement Agreement prior to its approval. The

undersigned will not rewrite the Settlement Agreement based on information that

the Plaintiffs possessed prior to May 2021. 

Moreover, Defendant has voluntarily taken steps to address the

circumstances which have changed since the Settlement Agreement was entered. 

These voluntary actions include: providing free vaccines to all detainees on a daily

basis, incentivizing vaccination by offering those who receive the vaccine a $25-

value commissary bag, posting educational materials on COVID-19 prevention and

vaccination throughout the Jail, including in the educational materials documents

that Plaintiffs requested be made available to detainees, making a minimum of

three loudspeaker announcements per day regarding the availability of

vaccinations, and providing in-person education on vaccination through its nurses

and healthcare professionals during chronic care visits and routine contact. (ECF

No. 142 at 15-16) 

Plaintiffs modification argument rests on the assumption that the Settlement

Agreement has a “purpose” of “protect[ing] incarcerated persons.” (ECF No. 130 at

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37) However, consent decrees generally do not have overarching purposes. Sierra

Club, 296 F.3d at 1031. Considering the high burden of proof required to support

modification, the availability of vaccines prior to approval of the Agreement,

Defendant’s voluntary steps to address changed circumstances, and the Eleventh

Circuit’s disfavor for overarching contractual “purposes,” the undersigned concludes

that Plaintiffs’ request for modification should be denied. 

The undersigned does note however, that the CDC Guidance provides that

correctional facilities can relax many COVID-19 practices for fully-vaccinated

individuals. Therefore, it is in the parties’ interests to increase the vaccination rate

at Defendant’s facilities, both to ensure the safety of detainees and staff, and to

lower the burden on Defendant. 

III. CONCLUSION

After careful review of the Motion, the entire case file, argument of counsel,

testimony of the witnesses, the evidence presented, and the applicable law, it is

hereby

RECOMMENDED that Plaintiffs’ Motion for Enforcement and Modification

of Consent Decree (ECF No. 130) be GRANTED IN PART, as follows:

1. Defendant shall, in accordance with CDC Guidance, conduct a COVID-19

test on all individuals at intake;

2. Defendant shall test for COVID-19 all detainees being released or otherwise

leaving the Jail, such as to attend court appearances. Defendant shall

utilize rapid tests to ensure that the time for receiving results will not delay

the detainee’s exit from the Jail; 

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3. Defendant shall, in accordance with CDC Guidance, ensure that individuals

in quarantine units are tested for COVID-19 every 3-7 days until testing

identifies no new cases in the quarantine unit for fourteen (14) days after the

most recent positive result;

4. Defendant shall conduct temperature and COVID-19 symptom checks prior

to all transfers of detainees to different facilities;

5. Defendant shall maintain a list of medically vulnerable detainees and

conduct COVID-19 symptoms screening and temperature checks of such

detainees;

6. Defendant shall track the housing location of medically vulnerable

detainees, and 

7. Defendant shall ensure that detainees possess two face coverings in usable

condition at all times. 

It is further RECOMMENDED that the Motion be DENIED, as follows:

1. No action by the Defendant is needed with regard to symptom screening 

detained persons re-entering jail, testing symptomatic and exposed detainees,

screening staff, separating quarantine and cohort units, contact tracing, cohorting

upon admission, re-testing and monitoring during cohorting, medical isolation of

symptomatic detainees, social distancing, personal protective equipment, and

educational information.

2. No enhanced reporting requirements and appointment of an independent

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 monitor to oversee compliance with the Settlement Agreement is required in light

of Paragraph 19 of the Settlement Agreement and Defendant’s cooperation with

Plaintiffs’ efforts to monitor compliance.

3. No modification of the Settlement Agreement is necessary.

The parties will have fourteen (14) days from the date of being served with a

copy of this Report and Recommendation within which to file written objections, if

any, with the Honorable William P. Dimitrouleas, United States District Judge. 

Failure to file objections timely shall bar the parties from a de novo Determination

by the District Judge of an issue covered in this Report and shall bar the parties

from attacking on appeal unobjected-to factual and legal conclusions contained

therein, except upon grounds of plain error if necessary in the interest of justice.

See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v.

Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1. 

DONE AND SUBMITTED at Fort Lauderdale, Florida, this 19th day of

November 2021.

Copies furnished to:

The Honorable William P. Dimitrouleas

All Counsel of Record 

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