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Scott v. Clarke

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

November 25, 2014

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

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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, Legal Aid Justice Center, Falls Church, VA; Mary Catherine Bauer, LEAD ATTORNEY, Abigail Turner, Alex Ross Gulotta, Brenda Erin Castaneda, LEGAL AID JUSTICE CENTER, 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.

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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 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 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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (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, 97 S.Ct. 285, 50 L.Ed.2d 251 (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 . . .

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[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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 non-moving 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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


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

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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 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 may receive, and medical staff has no authority to override VDOC criteria.


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

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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 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

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dealing with what Dr. Ramsdale considered to be medical neglect. Dr. Ramsdale accepted U.Va. Ethics' recommendation to declare Ms. Daley 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


" 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, 179 L.Ed.2d 969 (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 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, 108 S.Ct. 2250, 101 L.Ed.2d 40 (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.

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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. 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. Vogilano, 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, 645 S.E.2d 520 (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 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

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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 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 of law, that the VDOC has a non-delegable to

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provide to Plaintiffs -- indeed, to all prisoners within its custody -- medical care that meets constitutional minimum standards.[4]


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, 96 S.Ct. 2909, 49 L.Ed.2d 859 (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 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 ...

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