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Scott v. Clarke

United States District Court, Fourth Circuit

November 25, 2013

Cynthia B. Scott, et al., Plaintiffs,
Harold W. Clarke, et al., Defendants.


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.


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, 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).


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:

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 ...

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