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Scott v. Clarke

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

February 5, 2016

CYNTHIA B. SCOTT, et al., Plaintiffs,
HAROLD W. CLARKE, et al., Defendants.



This civil rights class action is before the Court after a fairness hearing regarding final approval of the parties’ proposed settlement. Plaintiffs filed proposed findings of fact and conclusions of law, which Defendants reviewed in advance of filing and with which they concur. (Dkt. no. 255 at 1). Plaintiffs also moved for attorneys’ fees and, after negotiations, the parties have submitted proposed supplemental findings and conclusions on that issue. (Dkt. no. 259). This case has been thoroughly and fairly litigated, and the proposed settlement is now ripe for final approval, as is a ruling regarding attorneys’ fees.

Prisoners at the Fluvanna Correctional Center for Women (“FCCW”) brought suit in July 2012, alleging violations of the Eighth Amendment’s prohibition on cruel and unusual punishment based on substandard medical care. Defendants unsuccessfully moved to dismiss the case. (See, e.g., dkt. nos. 33, 76). After extensive discovery, the parties filed cross-motions for summary judgment. (Dkt. nos. 135, 137). Additionally, Plaintiffs sought certification of a class of present and future prisoners at FCCW. (Dkt. no. 131). The Court certified the class under Fed.R.Civ.P. 23(b)(2). (Dkt. nos. 188, 189). The Court also granted Plaintiffs’ motion for partial summary judgment and denied Defendants motion for summary judgment. (Dkt. nos. 201, 202). With a bench trial imminent, the parties notified the Court on November 25, 2014 that they had reached a settlement in principle. (Dkt. no. 203). After lengthy negotiations over several months, the parties submitted a consent motion for preliminary approval of their settlement, which was granted. (Dkt. nos. 220, 221-1, & 222).

In evaluating the appropriateness of final approval against the relevant legal standards, the Court draws upon its familiarity with the facts and history of the case, the evidence previously placed in the record, testimony from the fairness hearing, and the parties’ proposed findings of fact and conclusions of law. The Court also has considered the handful of objections to the proposed settlement. For the reasons that follow, final approval of the settlement agreement will be given.


Plaintiffs, prisoners residing at FCCW, a facility of the Virginia Department of Corrections (“VDOC”), initiated this class-action lawsuit on July 24, 2012, pursuant to the Eighth Amendment to the Constitution of the United States and 42 U.S.C. § 1983, seeking declaratory and injunctive relief with respect to alleged constitutionally-deficient medical care afforded to themselves and all other women residing at FCCW. Plaintiffs contended the deficient medical care reflects deliberate indifference on the part of the VDOC Defendants to Plaintiffs’ serious medical needs. The complaint, subsequently amended, provided detailed allegations of insufficient medical care: e.g., prison officials changing or disregarding the recommendations or prescriptions of medical professionals; failure to timely respond to medical emergencies or to non-emergencies such that medical conditions worsened; failure to administer medications or doing so under extreme conditions (such as in inclement weather at two or three o’clock in the morning); insufficient medical staffing; refusal to provide medical services on grounds of cost or pretextual security concerns; and the failure to treat known, obvious, or suspected medical conditions such as MRSA, cancer, or diabetes.

On December 11, 2012 and October 4, 2013, the Court entered opinions denying various motions to dismiss the complaint for failure to state a claim. (Dkt. nos. 33 &76). The case proceeded for several more months in discovery. In August and September of 2014, Plaintiffs filed a motion to certify the class and for partial summary judgment, while Defendants also moved for summary judgment. (Dkt. nos. 131, 135, 138). By Memorandum Opinion and Order dated November 20, 2014, the Court granted Plaintiffs’ motion for class certification and certified a class consisting of “all . . . women who currently reside or will in the future reside at FCCW and have sought, are currently seeking or will seek adequate, appropriate medical care for serious medical needs, as contemplated by the Eighth Amendment to the U.S. Constitution, ” pursuant to Fed.R.Civ.P. 23(b)(2). (Dkt. no. 188).

Thereafter, the Court entered an Order granting partial summary judgment in favor of the Plaintiffs and denying the VDOC Defendants’ motion for summary judgment in its entirety on November 25, 2014, holding, inter alia, that:

• Plaintiffs established, as a matter of law, that they fully and properly exhausted all pre-litigation administrative remedies available to them, as required by applicable provisions of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e (See Memorandum Opinion dated November 25, 2014, at 23-33 & nn.8-10 (Dkt. no. 201));
• Plaintiffonstitutionally-adequate medical care to all prisoners within their custody, including the Plaintiffs (Id. at 8-13); and that
• VDOC Defes established, as a matter of law, that individually and as a class, they suffer from “serious medical needs” as a predicate to a viable cause of action for “deliberate indifference” under the Eighth Amendment (Id. at 13-18 & n.6);
• Plaintiffs established, as a matter of law, that the VDOC Defendants have a nondelegable duty under the Eighth Amendment to provide cndants failed, as a matter of law, to demonstrate on the basis of material facts as to which there is no genuine issue in dispute, that they could not be found liable for providing insufficient medical care, or failing to provide medical care under circumstances in which such care was due, reflecting “deliberate indifference” to the Plaintiffs’ and the class members’ serious medical needs in violation of the Eighth Amendment. (Id. at 33-46.)

The parties negotiated the proposed Settlement, first agreeing in principle to a resolution, which they then reduced to writing on November 25, 2014 in the form of a Memorandum of Understanding (“MOU”) regarding the substance and content of the Settlement and the process by which a final agreement would be reached. The parties notified the Court that they had reached an agreement in principle that same day, on the eve of trial. (Dkt. no. 204). Since that time, the parties have engaged in extensive communications by telephone, e-mail, and three in-person meetings involving counsel, VDOC officials, medical experts, and at times the proposed Settlement Compliance Monitor, Dr. Nicholas Scharff. The purpose of these meetings and correspondence was to finalize the Settlement Agreement terms, as well as changes to the VDOC Operating Procedures that governed the provision of medical care at FCCW, as contemplated in the parties’ MOU.

A final, fully-executed Settlement Agreement, with Appendices and Exhibits thereto, were submitted to the Court on September 15, 2015. See Dkt. nos. 220 & 221. On September 16, 2015, the Court granted preliminary approval of the class settlement. (Dkt. no. 222). The Defendants subsequently certified on September 24, 2015 that notice of the proposed settlement and class members’ right to object was distributed to each prisoner housed at FCCW. (Dkt. nos. 224 & 224-1). The Defendants further certified that notice of the Settlement was also sent on September 22, 2015 to the appropriate federal officials as required by the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715. (Dkt. no. 223).

As described in further detail below, this Court conducted a Fairness Hearing on November 9, 2015 to receive evidence and testimony to assist in evaluating whether the settlement of this action on the terms and conditions provided for in the proposed Settlement Agreement is fair, reasonable, and adequate.


Summary of the Proposed Settlement Agreement

The Settlement Agreement in this case consists of two broad components: review and revision of VDOC policies governing medical care at FCCW, and monitoring of FCCW’s compliance by an independent monitor. (Dkt. no. 221-1 (Settlement Agreement)). Plaintiffs and Defendants, in consultation with their respective experts and Dr. Scharff (the proposed compliance monitor), agreed to revisions of certain VDOC Operating Procedures, which, as revised, will provide guidance for the provision of enhanced medical care at FCCW. The provisions revised are:

OP 411.1 Offender Transportation [Non-Public]
OP 420.2 Use of Restraints and Management of Offender Behavior [Non-Public]
OP 425.2 Hospital Security [Non-Public]
OP 701.1 Health Services Administration
OP 720.1 Access to Health Services
OP 720.2 Medical Screening Classification and Levels of Care
OP 720.3 Health Maintenance Program
OP 720.4 Co-Payment for Health Care Services
OP 720.5 Pharmacy Services
OP 730.1 Mental Health Services: Administration
OP 730.2 Mental Health Services: Screening, Assessment and Classification
OP 730.5 Mental Health Services: Suicide Prevention and Behavior Management
OP 740.1 Infectious Disease Control
OP 810.1 Offender Reception and Classification

(Dkt. no. 221-1, App’x. A).

The parties also negotiated and agreed upon a set of additional medical guidelines and standards addressing issues and problems at FCCW that Plaintiffs alleged in their Complaint and developed throughout the pendency of this case. These subjects include, inter alia, provider staffing levels, the medical intake process, comprehensive health assessments, the sick call process, the co-pay policy, diagnosis and treatment, response to emergencies, infirmary conditions, chronic care, infectious disease control, utilization management, continuity of medications and treatment supplies, physical therapy, medical grievances, access to information regarding care, accommodations for prisoners with disabilities, staff training, care and release of terminally-ill prisoners, conduct of mortality reviews, and criteria for measuring performance and quality improvement and contractor monitoring. (Dkt. no. 221-1 at 6-15).

The parties also agreed to create an additional Operating Procedure for FCCW regarding reasonable accommodations for physical disabilities of incarcerated individuals consistent with the mandate of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and its implementing regulations and standards. (Doc. no. 221-1 at 15). This procedure will be developed in consultation with the parties’ respective medical experts and the compliance monitor within 120 days of the effective date of the settlement agreement. (Id.).

Lastly, the parties agreed that they will develop an Operating Procedure establishing concrete and definitive practices and procedures to govern VDOC’s self-evaluation with respect to the quality and quantity of the medical care it provides to prisoners at FCCW on an ongoing basis in accordance with widely-recognized Continuous Quality Improvement (“CQI”) concepts. This procedure will be developed in consultation of the parties’ respective medical experts and the compliance monitor within 120 days of the effective date of the settlement agreement. (Id.).

The parties jointly selected Dr. Nicholas Scharff, M.D., MPH, the former Chief Medical Officer of the Commonwealth of Pennsylvania Department of Corrections, to serve as the Settlement Compliance Monitor. The parties believe that Dr. Scharff is appropriately qualified for this role.[1] Dr. Scharff’s curriculum vitae is attached as Appendix C to the settlement agreement. Dr. Scharff will develop performance monitoring tools for each of the subjects listed in Appendix B of the settlement agreement in regard to which a constitutionally-adequate level of care is owed. This will involve detailed tracking of samples of representative data and measuring and re-measuring over time to determine whether progress has been made. (See Dkt. no. 251 (Transcript of Nov. 9, 2015 Fairness Hearing) at 50-51 (hereinafter “Hr’g Tr.”)).

Under the settlement, Dr. Scharff initially will visit FCCW four times a year. He will interview patients and staff and gather data while on-site, and will analyze the data off-site and provide a report reflecting the results of each visit to the parties. (Dkt. no. 221-1 at 16-17; Hr’g Tr. at 48). On his visits, Dr. Scharff will have access to speak confidentially with personnel and prisoners, as well as review facilities, medical files, and grievances as he deems necessary. The visits will occur over the period of a minimum of three years. (Dkt. no. 221-1 at 16-17, 20-21; Hr’g Tr. 48). Dr. Scharff will identify to the parties any areas or subjects where he finds that VDOC is not in compliance with the provisions of the settlement or Eighth Amendment standards. VDOC will have 30 days from the date of such notice within which to correct any areas of noncompliance, after which, if the problems persist, Plaintiffs will have the option of filing a motion in this Court to enforce the settlement, seek contempt sanctions, or both. (Dkt. no. 221-1 at 19).

In summary, the Settlement Agreement addresses with particularity each of the problems Plaintiffs identified in their Complaint and fully developed in the record with the evidence supporting their memorandum in support of the motion for class certification (dkt. no. 132) and their memorandum in support of their motion for partial summary judgment (dkt. no. 138).

Testimony at the Fairness Hearing

Plaintiff Cynthia Scott. Cynthia Scott has resided at FCCW since 2003. She testified that, at age 31, she had very few health problems when she first arrived at FCCW and led an active lifestyle of yoga, basketball, and other activities. Her health has deteriorated and now she requires the use of a wheelchair or cane for mobility and is in constant pain. (Hr’g Tr. at 6:10-8:9). Ms. Scott testified about problems at FCCW with delayed diagnoses, following the orders of medical specialists, denial of necessary medications, and FCCW’s failure to maintain an adequate supply of and provide prescribed medications. For example, Ms. Scott testified that FCCW failed to seek and obtain for her necessary treatment from a specialist for the bone disease in her wrists, shoulders, and hips. (Hr’g Tr. at 8:10-10:15).

Ms. Scott also testified that FCCW delayed diagnosing a potentially deadly blood clot in 2012, instead telling her that her cold, swollen, and icy foot that persisted over six months was a symptom of arthritis. (Hr’g Tr. at 10:16-13:18). Ms. Scott described unsanitary conditions at the Infirmary - including blood and feces on the walls - and difficulties in receiving prompt attention from a nurse when patients push the call button. (Hr’g Tr. at 15:17-22). She further testified that residents continue to experience problems with the medical care at FCCW, including the pharmacy running out of prescribed medications and delays responding to emergency calls for medical help. (Hr’g Tr. at 19:13-21:23). Ms. Scott believes that, with effective outside monitoring, the Settlement Agreement will resolve the problems at FCCW. (Hr’g Tr. at 22:25-23:3).

Plaintiff Toni Hartlove. Toni Hartlove has resided at FCCW since 1999. (Hr’g Tr. at 25:3-4). Ms. Hartlove testified about problems at FCCW concerning deficiencies with respect to medication administration, chronic care, pain management, and infirmary conditions. For example, she testified that she takes two medications daily that are necessary to prevent her from having seizures. (Hr’g Tr. at 25:21-26:1). These seizures are terrifying. She is immobilized and cannot speak or move. The seizures are also psychologically scarring. She feels afraid and worries that she may physically injure herself in a fall. (Hr’g Tr. at 26:21-27:16). Her medications have lapsed three times in just the last year, causing grand mal seizures each time. (Hr’g Tr. at 28:7-10). Ms. Hartlove believes the medical staff at FCCW frequently diverts medication prescribed to other inmates and gives it to her when FCCW prematurely runs out of her medication. Id.

Ms. Hartlove has also been experiencing leg pain, and was just diagnosed with compressed discs. (Hr’g Tr. at 29:14-20). Although the pain is so intense that she cannot walk, she has been provided no prescription for pain medication except for 7-10 days of Motrin, and was then simply told to buy Advil or Tylenol at the commissary. The over-the-counter medications reduce the pain but do not sufficiently control it. (Hr’g Tr. at 33:4-20). Ms. Hartlove’s back condition will require surgery, and she is very worried about what will happen to her while she recovers in the infirmary because of the lack of adequate nurse staffing and the unsanitary conditions she has seen there. There are not enough nurses to pay appropriate attention to the patients and their needs. Infirmary patients are not allowed recreation, exercise, to go to school, to perform their jobs, to attend church services, or to participate in other activities. Most infirmary patients are not allowed to use the commissary. (Hr’g Tr. at 31:19-33:3). Before she stopped working because of her back pain, Ms. Hartlove worked as a laundry technician for 35 cents an hour, earning about $42 a month. From that amount, she must buy all her necessities at the commissary, in addition to paying sick call co-pays and buying needed medications. (Hr’g Tr. at 33:18 -34:13). Ms. Hartlove testified that the Settlement Agreement will be a fair and adequate solution to the problems identified in the lawsuit if it is followed. (Hr’g Tr. 25:17-20).

Plaintiff Lucretia Robinson. Lucretia Robinson has resided at FCCW since 2013. (Hr’g Tr. at 35:19-20). Ms. Robinson testified about problems with medical intake of new prisoners at FCCW, as well as problems with medication administration, treatment of prisoners with physical disabilities, and ongoing delays in pill line and provider access. For example, she testified that when she came to FCCW, she brought with her a walker and a cane she needed to move around because of an accident in which she was involved several years before. Both were taken away from her at intake, and as a result she had difficulty moving around, falling on multiple occasions. She also experienced a ...

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