United States District Court, W.D. Virginia, Charlottesville Division
SHERRY LYNN THORNHILL, for herself and as Administrator of the Estate of her son, Shawn Christopher Berry, deceased, individually and on behalf of all others similarly situated, Plaintiff,
F. GLENN AYLOR, et al., Defendants.
Hon. Glen E. Conrad Chief United States District Judge.
Plaintiff Sherry Lynn Thornhill, on behalf of herself and as administrator of the estate of her son, Shawn Christopher Berry, filed this action pursuant to 42 U.S.C. § 1983 and Virginia Code § 8.01-50, et seq.. against the Central Virginia Regional Jail Authority (the "Authority"), Superintendant F. Glenn Aylor, and several employees at the Central Virginia Regional Jail ("CVRJ"), arising out of Berry's death while in custody. The case is presently before the court on defendants' motions to dismiss and the Authority's motion to deny class certification. For the following reasons, the court will grant the motions to dismiss filed by defendants Erin O. LaPanta, Robert J. Counts, Jeremy D. Boston, Michael Horrocks, Eric Last, and Thomas Vogt, will grant in part and deny in part the Authority's motions to dismiss, and will deny the remaining defendants' motions to dismiss. The court will also grant the Authority's motion to deny class certification. As such, the court will dismiss Count I of the complaint, the claim on behalf of the proposed class, as moot.
The following facts, taken from plaintiffs complaint, are accepted as true for purposes of the motions to dismiss. See Erickson v. Pardus. 551 U.S. 89, 94 (2007).
I. Berry's Experience at CVRJ
On August 7, 2014, deputies from the Orange County Sheriffs Department arrested Berry and his girlfriend, Pamela Dale Legg, at their home on outstanding warrants. At the time of his arrest, Berry had been addicted to alcohol for over twenty years and heroin for about ten years, and he informed the deputies that he would experience severe withdrawal in jail. When they arrived at CVRJ, Legg also told the deputies that Berry would experience withdrawal symptoms in jail, and that he had to be placed in intensive care the last time he went to jail.
When the deputies transferred Berry to the custody of CVRJ, SC Dickson of the Sheriffs Department filled out an "Arresting/Transporting Officer Questionnaire, " in which he wrote that Berry "stated he has DT [delirium tremens] real bad." Am. Compl. ¶ 25. CVRJ staff also noted that Berry suffered from asthma, had high blood pressure, and was addicted to alcohol and heroin. According to the complaint, during Berry's interview with CVRJ staff, one officer stated that he did not feel sorry for addicts because "it was a choice they make [sic]." Id. ¶ 27.
At 5:34 p.m. on the day of his arrest, CVRJ staff wrote on Berry's Booking Observation Report: "WILL BE GOING THROUGH WITHDRAW AL/DRUG-HEROIN/ALCOHOL-LIQUIER [sic]/DRUG-2100 hrs 08/06/2014." Id. ¶ 28. By 10:00 p.m. that night, CVRJ staff discovered that Berry had vomited on his jumpsuit and in his bunk. Officer Michael Horrocks wrote in his incident report that Berry was "beginning to go through drug withdrawals." Id. ¶ 42. Thomas Vogt, an Emergency Medical Technician ("EMT") and nurse at CVRJ, also wrote in his incident report that he "found out that Berry was going through heroin withdrawals." Id. ¶ 43. The next morning, Berry had lost track of time and was delusional. CVRJ officers drove Berry to court, but the judge refused to see him because he believed that Berry would vomit in the courtroom. CVRJ staff then transported Berry back to the jail.
Another inmate in the same cell block, referred to in the complaint as "Inmate A, " described Berry as "ill-looking" and "unresponsive." Id. at ¶ 48. Inmate A and others requested medical assistance for Berry on a number of occasions; Inmate A believes that he asked for help at least nine or ten times. The complaint alleges that CVRJ employees would sometimes ignore these requests entirely. At other times, Nurse Amanda Pitts and others told Inmate A that if Berry did not personally approach the window to ask for medical assistance, he would receive none. Inmate A advised them that Berry was too sick to leave his bunk. When Inmate A offered to bring a food tray to Berry, because Berry was too sick to retrieve one, CVRJ staff refused.
On or about the morning of August 9, 2014, Inmate A observed Berry go to the toilet, where he vomited and had diarrhea. A half hour later, another inmate assisted Berry back to his bunk. Inmate A asked Berry if he wanted food and water, but Berry was unresponsive. Berry vomited and defecated several more times over the next few hours. Berry was sometimes able to reach the toilet, but he also emitted a strong smell of feces. The complaint alleges that, at the time, CVRJ had a well known, unwritten policy which provided that, if an inmate soiled himself, he would either have to wait until laundry day or personally wash his clothes in the shower. The final time Berry vomited, Inmate A noticed that the vomit was yellow and contained both black particles and fresh blood. Because Berry's vomit had gotten on another inmate's bunk, CVRJ staff cleaned up the mess, pursuant to another well known, unwritten CVRJ policy. At this point, Berry was removed from the cell block and placed in a single cell in the booking area of the jail.
By 10:00 a.m. on August 9, 2014, Berry was very weak, delirious, and severely dehydrated. Because Berry had again soiled his jumpsuit, Officer Jeremy D. Boston assisted Berry to the shower. Approximately eight minutes later, Boston found Berry lying on the floor of the shower. Boston noted in his incident report that Berry was "dry heaving and had appeared to vomit on the floor." Id. ¶ 61. Nurse Christie M. Apple-Figgins wrote in her incident report that Berry was dry heaving and was "being monitored and treated for possible heroin withdrawals." Id. She also noted that Berry had refused to come to medical that morning so that the staff could check his vitals. Approximately three to four hours later, Officer Erin O. LaPanta called Boston for assistance because Berry had fallen out of his bunk. Both LaPanta and Boston assisted Berry back into his bed. LaPanta then called for medical staff to take Berry's vitals. Apple-Figgins arrived, took Berry's vitals, and told LaPanta that Berry was fine. LaPanta noticed dark particles in Berry's vomit and asked Apple-Figgins what they indicated. Apple-Figgins said that it was old blood, and that she would get Berry some Gatorade. LaPanta checked on Berry throughout the day, refilled his Gatorade, and noted that Berry was drinking the Gatorade and "holding it down." Id. Later, LaPanta again noticed the same "coffee ground" particles in Berry's vomit and stools. Id. When asked if he was okay, Berry simply replied that he was thirsty. LaPanta then provided him with more Gatorade.
At 5:20 p.m. on August 9, 2014, Officer Robert J. Counts was asked to assist Berry to the bathroom. At the time, Berry was "delirious, but conscious." Id. at ¶ 67. As Counts was moving Berry to the toilet, Berry seemed to have a "fit, " his "eyes fluttered, " and he was making "spazming [sic] movements." Id. LaPanta ran her fingernail across the bottom of Berry's foot to wake him. Five minutes later, Berry woke up and was very confused. Nurse Jasmine Buckner-Jones arrived, took Berry's vitals, and said that his blood pressure was fine. She then left to call a doctor. When Berry began to spit up blood, Counts moved Berry to his side in the "recovery position." Id. When the bleeding stopped, Counts then placed Berry on his back. About two minutes later, blood erupted from Berry's mouth. Counts and LaPanta immediately put Berry back on his side and called medical staff. Counts noted in his incident report that Berry did not appear to be breathing at this point. Bucker-Jones called Pitts, told her that Berry was throwing up, and asked if she should call 911; Pitts gave her permission to call emergency services. Berry was pronounced dead at 6:17 p.m. on August 9, 2014. Before calling Berry's family, Superintendent F. Glenn Aylor wrote an email to Dr. William Wilson, in which he stated that "Inmate Berry's death appears to be from a pre-existing medical condition that my medical department was not aware of." Id. at ¶ 70.
The complaint alleges that, at the time of Berry's death, CVRJ had written policies and procedures for treating inmates suffering from alcohol and heroin withdrawal. With respect to alcohol withdrawal, the procedures required CVRJ staff to complete a "CIWA scale" in which each symptom of alcohol withdrawal is measured and assigned a severity score. Id. at ¶ 33. If the inmate had a score of less than 20, the procedures instructed CVRJ staff to monitor the individual. For scores between 20 and 25, CVRJ staff was required to notify the on-call doctor and provide 1-2 mg of the drug Ativan to the inmate. For scores higher than 25, CVRJ staff was required to notify the on-call doctor and administer 2-3 mg of Ativan. If the inmate experienced delirium tremens, the specified treatment was hospitalization. For inmates suffering from heroin withdrawal, CVRJ procedures included obtaining a drug history, doing a "neuro check, " and taking an inmate to the hospital if the inmate was "unconscious, obtunded, non-ambulatory, or  appear[ed] to be in a state of emergency." Id. at ¶ 38. Thornhill argues that defendants did not follow CVRJ's internal protocols for alcohol and heroin withdrawal when they treated Berry.
In light of the foregoing, Thornhill alleges that defendants failed to: (1) recognize Berry's imminent likelihood of withdrawal, (2) identify the risk of Berry's impaired swallowing due to his severe vomiting, but continued to give him liquid and pills by mouth, (3) accurately assess Berry's vital signs, (4) reassess Berry for instability during each shift, (5) recognize the signs and symptoms of deficient fluid volume and hypovolemic shock, (6) treat seizure symptoms and recognize ineffective breathing pattern, (7) recognize and treat severe withdrawal symptoms, (8) assess the risk for bleeding, and (9) treat the symptoms of gastrointestinal bleeding.
II. Other Inmate's Experience at CVRJ
In addition to the circumstances surrounding Berry's death, the complaint describes a "pattern and practice of deliberate indifference to inmates' medical needs" at CVRJ. Id. at ¶ 71.
a. Victoria Jenkins
Victoria Jenkins was an inmate at CVRJ in October of 2014. At the time of her detention, Jenkins took several medications to treat her mental illnesses. However, CVRJ staff refused to give Jenkins her medication and Buckner-Jones told Jenkins that she "better get used to it" because she was "not getting the medication [her] doctor prescribed." Id. at ¶ 83. When Jenkins' sister called CVRJ, she spoke to Buckner-Jones and Pitts who said that they "hadn't had time to get [the medication] to [Jenkins] yet." Id. at ¶ 86. Her sister also contacted Jenkins' doctor, who instructed CVRJ staff to administer Jenkins' medication, which they failed to do. Jenkins' mental health deteriorated to the point where she had to be hospitalized at Western State Hospital. After she was discharged from the hospital on December 3, 2014, Jenkins began receiving her medication, and her mental condition stabilized.
b. Inmate A
In 2006, Inmate A suffered a back injury that required him to take both pain medication and muscle relaxers. At first, CVRJ staff refused to give Inmate A any medication, but they eventually provided over-the-counter pain medications to him. At the time, Inmate A also suffered from Crohn's disease, which was aggravated by pain medications containing ibuprofen or aspirin. Although CVRJ staff knew of Inmate A's condition, he received unidentified pain medications that aggravated his Crohn's disease. Medical staff also refused to verify the types of pain medications Inmate A was receiving.
In addition, the complaint describes an incident in which a correctional officer held Inmate A down on the floor and repeatedly drove his knee into Inmate A's rib cage and lower sides. Shortly after, Inmate A began bleeding from his rectum. He did not receive medical attention despite at least two attempts to request help from the correctional officers.
c. Inmate B
Another inmate, referred to in the complaint as "Inmate B, " was incarcerated at CVRJ in 2005. At the time of his detention, Inmate B was prescribed three different psychiatric medications. Each medication required that he take one dose in the morning and one dose at night. However, CVRJ staff gave Inmate B both doses of two of his medications in the morning and both doses of his third medication in the evening. According to the complaint, Inmate B saw CVRJ staff give another inmate's pills with water, although the directions specified that the medication was not supposed to be taken with water. Inmate B also alleges that CVRJ staff was consistently late with administering pills in the evening, which caused several inmates to experience withdrawal symptoms.
d. Inmate C
Another inmate, referred to in the complaint as "Inmate C, " was incarcerated at CVRJ in 2011. Inmate C is an elderly man who took two prescription medications for high blood pressure and two prescription medications for gout. However, CVRJ staff refused to give Inmate C his medications. Three to four days after his release, Inmate C visited his doctor, who told ...