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Scott v. Clarke

United States District Court, W.D. Virginia, Charlottesville Division

November 20, 2014

CYNTHIA B. SCOTT, ET AL., Plaintiffs,
HAROLD W. CLARKE, ET AL., Defendants

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[Copyrighted Material Omitted]

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For Cynthia B. Scott, A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated, Bobinette D. Fearce, A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated, Marguerite Richardson, A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated, Rebecca L. Scott, A prisoner residing at Fluvanna Correctional Center for Women, Individually, and on behalf of all others similarly situated, Plaintiffs: Ivy Ann Finkenstadt, LEAD ATTORNEY, Falls Church, VA; Mary Catherine Bauer, LEAD ATTORNEY, Abigail Turner, Alex Ross Gulotta, Brenda Erin Castaneda, CHARLOTTESVILLE, VA; Deborah Maxine Golden, Philip Jerome Fornaci, PRO HAC VICE, Washington Lawyers Committee, Washington, DC; Theodore Augustus Howard, PRO HAC VICE, Wiley Rein LLP, Washington, DC.

For Harold W. Clarke, Director, Virginia Department of Corrections, A. David Robinson, Chief of Corrections Operations, Virginia Department of Corrections, Frederick Schilling, Director of Health Services, Virginia Department of Corrections, Phyllis A. Baskerville, Warden, Fluvanna Correctional Center for Women, Defendants: John Michael Parsons, LEAD ATTORNEY, James Milburn Isaacs, Jr., Commonwealth of Virginia, Office of the Attorney General, Richmond, VA; Kate Elizabeth Dwyre, Office of the Attorney General, Richmond, VA.

For Corizon Health, Inc., Dr. Mark Militana, Medical Director, Fluvanna Correctional Center for Women, Defendants: Edward J. McNelis, III, Elizabeth Martin Muldowney, LEAD ATTORNEYS, Rawls McNelis & Mitchell, Richmond, VA.

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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[1] 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

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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 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).



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 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

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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 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.


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 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

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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.

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 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

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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.


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 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

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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 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 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 ...

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