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.
Glen E. Conrad, United States District Judge.
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 three medical employees
("the Medical Defendants") at the Central Virginia
Regional Jail ("CVRJ"). The action arises out of
Berry's death while experiencing drug and alcohol
withdrawal in CVRJ custody. The case is presently before the
court on the defendants' motion for summary judgment as
to Count II under § 1983 and the defendants' motion
to dismiss Count III for wrongful death under Virginia law.
For the reasons set forth below, both the motion for summary
judgment and the motion to dismiss are denied.
following facts are either undisputed or presented in the
light most favorable to the plaintiff. See Anderson v.
Liberty Lobby, Inc.. 477 U.S. 242, 255 (1986).
CVRJ Policies on Medical Care to Inmates
CVRJ inmates have Anthem medical insurance. Dep. of Teresa
Miller 14-15, Docket No. 105. Each bill from a healthcare
provider is negotiated with Anthem down to a contractually
allowed amount. Id. at 15. Anthem pays the bill, and
the Authority pays Anthem. Id.
Authority in turn receives payments for medical expenses from
five localities that use the facility to house inmates. Dep.
of Glenn Aylor 59, Docket No. 104. The localities pay an
annual allocation based on a formula, and when the medical
expenses for a certain locality exceed the budgeted
allocation, the Authority pays the bill and the locality
reimburses the Authority. Id., at 78, 80-81.
medical department of the CVRJ has a written policy manual on
providing medical care to inmates. The manual includes a
section on inmates undergoing drug and alcohol withdrawal. In
that section, the manual lists symptoms of acute withdrawal
to include restlessness, lethargy, vomiting, shakes or
tremors, convulsions, mental confusion and disorientation,
possible bizarre behavior or psychosis, and marked anxiety.
CVRJ Medical Policy Manual at 48-49, Docket No. 123-4. Other
symptoms of alcohol withdrawal are listed throughout the
manual and include an elevated blood pressure, elevated or
abnormal pulse rate, tremors, hallucination, a decreased
respiratory rate, an altered state of consciousness, nausea,
weakness, anorexia, and sweating. Id. at 92, 98-99.
inmates displaying signs of intoxication, the medical staff
is instructed to perform a Clinical Institute Withdrawal
Assessment ("CIWA") scale, conduct a "neuro
check, " record the inmate's vital signs, "and
obtain as much information as possible about the drinking
habit and history" of the inmate to include the
inmate's previous history of detoxification and time of
his last drink. See Id. at 92. The manual instructs
the medical department to report to a physician if the inmate
scores more than 20 on the CIWA scale, appears to have any
particularly concerning symptoms such as an incomplete
response to care or continuous abnormal vital signs, becomes
confused, suffers from persistent vomiting, or receives
Phenergan for persistent vomiting because of its potential to
decrease the seizure threshold. Id. at 92-93. The
protocol for monitoring vital signs requires a check every 15
minutes during severe symptoms, every 2 hours for the first
24 hours, and every 4 hours for the next 2 days. Id.
at 93. Late or major withdrawal from alcohol, which is marked
by a "clouding of consciousness and delirium" and
known as delirium tremens ("DTs"), usually begins
about 48 hours after the last drink and requires
"Hospitalization!" Id., at 99.
instructions for managing withdrawal from heroin advise that
the signs and symptoms will usually occur within 24 hours of
the last dose and include nausea, diarrhea, tremors, an
increased appetite, an increased or decreased blood pressure,
and "an altered state of mentation." Id.
at 141. The medical department is instructed to observe
inmates every 15 minutes for level of consciousness, record
the inmate's vital signs, obtain detailed information
regarding the inmate's drug history, conduct a neuro
check on anyone with an altered level of consciousness,
report all findings to a physician, and send any individual
who appears to be "unconscious, obtunded,
non-ambulatory, or who appears to be in a state of
emergency" to the hospital emergency room. Id.
Berry's Experience at the CVRJ
being arrested by deputies from the Orange County Sheriffs
Department on outstanding warrants, Shawn Christopher Berry
arrived at the CVRJ for booking at around 4:27 p.m. on August
7, 2014. Aff. of Shannon Dickson 1-3, Docket No. 106. On the
booking intake form, the arresting officer noted that Berry
appeared to be under the influence of drugs and alcohol and
that Berry had affirmed that he was suffering from "real
bad . . . DTs." Arresting/Transporting Officer
Questionnaire, Docket No. 123-3 (internal quotation marks
omitted). The booking officer also observed that Berry
appeared to be under the influence of an intoxicant and
"was kind of staring off, kind of stammering a little
bit." Dep. of Colby Miller 3-4, Docket No. 123-8. The
booking officer recorded on the booking observation form that
Berry "will be going through withdrawal DTs" from
heroin and alcohol use and indicated Berry had last used
drugs at 10:00 p.m. on August 6, 2014. Booking Observation
Form, Docket No. 123-6.
then underwent a medical intake performed by Licensed
Practical Nurse ("LPN") and supervisor Amanda
Pitts. See Doctor's Notes, Docket No. 123-7; Dep. of
Christie Apple Figgins 62, Docket No. 96. Pitts received the
booking observation form and completed her own intake form.
Dep. of Amanda Pitts 68, 75, Docket No. 93. In her notes,
Pitts indicated that Berry had a history of asthma,
hypertension, and drug and alcohol abuse, which included
drinking a fifth of liquor and using heroin every day.
Doctor's Notes. Berry complained of lower anterior rib
pain. Id. While Pitts did not observe any sign of
injury in the area, she noticed that Berry was wheezing. Id.,
She prescribed Albuterol for Berry's asthma, id., and
ordered checks of Berry's vital signs, including his
pulse and blood pressure, once a day for two days, and if
Berry appeared unstable, every shift, Dep. of Pitts 35;
Medical Intake Form, Docket No. 123-9. At that time, Berry
had a pulse rate of 93 and a blood pressure reading of 128
over 94. Medical Intake Form.
ordered the vital signs checks to monitor Berry for any signs
or symptoms of withdrawal. Doctor's Notes; Dep. of Pitts
35. She later testified that she believed Berry was
undergoing only heroin, and not alcohol, withdrawal. Dep. of
Pitts 36. She had previously treated inmates suffering from
alcohol withdrawal and understood that some of the symptoms
of alcohol withdrawal overlap with the symptoms of heroin
withdrawal, including nausea, vomiting, anxiety, agitation,
and sweating. Id. at 17, 19-20. While Berry was not
hallucinating or displaying other more serious signs or
symptoms of alcohol withdrawal when Pitts observed Berry, she
understood that an inmate was "probably not going to
have any signs and symptoms" during the intake
assessment "because it's very early after their last
use" and inmates "don't start withdrawing
'til later on." Id. at 18, 29. She
acknowledged that a nurse could perform a CIWA scale on an
inmate in a number of cases including one in which the inmate
displayed signs and symptoms of alcohol withdrawal or had a
history of alcohol use. Id. at 28-31. Pitts had been
trained on the policy manual when she started her position at
the CVRJ. Id. at 35.
the intake assessment, CVRJ officials housed Berry in J
Block. Shortly before 10:00 p.m. on August 7, Berry vomited
on his jumpsuit. Dep. of M. Horrocks 15-16, Docket No. 94;
Vogt Aug. 7, 2014 Incident Report, Docket No. 124-1. Two
officers and an EMT escorted Berry, who was able to walk
without assistance, to the medical department. Dep. of
Horrocks 17; Vogt Aug. 7, 2014 Incident Report. The EMT
determined that Berry was withdrawing from heroin and gave
Berry Phenergan for nausea and Imodium for diarrhea. Dep. of
Thomas Vogt 12-13, Docket No. 95. In an interview with
Virginia State Police Investigators, Vogt said that Berry
"looked like he had the shakes, like the shakes and hand
tremors." Interview of Thomas Vogt 8, Docket No. 123-13.
While testifying in this case, Vogt asserted that Berry did
not show signs of alcohol withdrawal, "like tremors or
delusions, hallucinations, sweating, anxiety, [or]
agitation." Dep. of Vogt 12, 17-18.
officers then transferred Berry to booking, where a booking
officer could monitor him. Dep. of Horrocks 24; Dep. of
Miller 5-6. The CVRJ did not staff the medical department
from 11:00 p.m. until 5:30 a.m., but relied on an on-call
physician for emergencies. Id. at 34. The booking
officer on duty observed that Berry rose at least once during
the night to vomit, but otherwise appeared to sleep through
the night. Dep. of Horrocks 24; Dep. of Miller 5-6.
next morning, on August 8, 2014, Berry visited the medical
department, where LPN Christie Apple-Figgins checked his
vital signs as Pitts had directed and determined that he had
a pulse rate of 116 and blood pressure of 132 over 90. Dep.
of Apple-Figgins 31, 34; Medical Intake Form. Apple-Figgins
had access to the booking intake form and Pitts' notes,
but she did not look at them while evaluating Berry. Dep. of
Apple-Figgins 47-48, 58. She asked Berry why she needed to
check his vital signs, and Berry responded that he used
heroin. Id. at 36. Apple-Figgins testified that she
does not recall Berry mentioning alcohol. Id.
Apple-Figgins had been shown the medical department's
policies when she started working at the CVRJ. Id.
returned to his cell, where officers arrived to escort Berry
to the Orange County courthouse for a scheduled appearance.
Dep. of Michael Frazier 15, Docket No. 97. Berry appeared
delusional and had lost track of time. Id. Officers
drove Berry to the courthouse, but upon observing Berry to be
"visibly ill" and "barely able to hold his
head up, " the court sent Berry back to the CVRJ until
he became well enough for a hearing. Virginia State Police
Notes, August 11, 2014, Docket No. 125-8. Berry returned to
the booking area of the CVRJ, where he refused to eat
breakfast, lunch, or dinner. Jail Activity Log, Docket No.
124-12. Security officers would notify the medical department
if an inmate refused multiple meals. Dep. of Apple-Figgins
night, Berry complained to the booking officer about
difficulty breathing. VSP Investigation Notes, Docket No.
124-7. The officer noticed that Berry was sweating, but also
that he was moving around easily and that his breathing was
improving. Id. Berry later confirmed that he felt
next morning, on August 9, 2014, the new booking officer on
duty regularly checked on Berry. Dep. of Erin LaPanta 36-39,
Docket No. 107. Apple-Figgins learned that Berry had refused
to go to the medical department for a vital signs check and
understood that he was in booking because he required
monitoring. Dep. of Apple-Figgins 96-97.
before 9:30 a.m., Berry requested a shower because he had
vomited and defecated on himself. Dep. of LaPanta 56-60. The
booking officer called for assistance, and two officers
arrived to transport Berry on a wheelchair to the shower.
Id. They placed a chair in the shower stall for
Berry to sit on, and left Berry alone in the stall until one
of the officers heard water hitting the floor, indicating
that Berry was not standing directly beneath the shower head.
Boston Incident Report Aug. 8, 2014, Docket No. 124-3; Dep.
of Jeremy Boston 25, Docket No. 99. The officer entered the
stall and found Berry lying on the floor, half dressed. Dep.
of Boston 26. Berry had vomited on the floor and was dry
personnel alerted Apple-Figgins to Berry's fall, and she
responded to the shower to provide medical assistance. Dep.
of Apple-Figgins 78. Apple-Figgins later testified that she
never saw the vomit. Id. at 85. When Apple-Figgins
assessed Berry, he reported that he had become dizzy and
fallen. Id. at 80. Apple-Figgins left Berry to
retrieve medications and equipment to check Berry's vital
signs and ordered Gatorade to be delivered to Berry.
Id. at 90-91.
she returned to the booking area, Apple-Figgins found Berry
lying in his bunk. Id. at 110. After an officer
assisted Berry with sitting up, Apple-Figgins checked
Berry's vital signs, noting his pulse as 108 and his
blood pressure as 104 over 62. Id. at 111; CVRJ
Nurse's Notes Aug. 9, 2014, Docket No. 124-6. Berry
stated that he only wanted to rest, and Apple-Figgins gave
him Phenergan and Ibuprofen before leaving him in his cell.
CVRJ Nurse's Notes Aug. 9, Around the time of this
incident, Apple-Figgins also spoke with the booking officer
on duty. Dep. of LaPanta 60. The booking officer claims that
she informed Apple-Figgins that Berry's vomit "was
like coffee grounds, " which Apple-Figgins identified as
dry blood in the vomit. Id., at 60-61. The booking
officer testified that Apple-Figgins "seemed to think it
was okay." Id., Apple-Figgins does not recall ever
seeing vomit with a coffee-ground texture, but recalls seeing
"what looked like somebody spit on the floor" and
that the booking officer asked her to describe the appearance
of vomit with blood in it. Dep. of Apple-Figgins 123.
asserts that she requested that the officer inform her if
Berry vomited again and to notify medical personnel if Berry
did not eat his lunch or drink his Gatorade. Id.;
CVRJ Nurse's Notes Aug. 9, 2014. Apple-Figgins had
previously given Berry a biohazard bag to collect his vomit
for examination. Dep. of Apple-Figgins 123-24. Apple-Figgins
did not receive any further reports about Berry. Id.
she left at the end of her shift at 4:00 p.m., she informed
the incoming on-duty nurse, Nursing Assistant Jasmine
Buckner-Jones, that Berry was withdrawing from heroin, that
he had received Gatorade, and that the booking department had
been advised to contact the medical department should Berry
need anything. Dep. of Jasmine Buckner-Jones 50, Docket No.
100. Buckner-Jones had seen the CVRJ's medical manual,
which included the policies on drug and alcohol withdrawal.
Id. at 19. She later testified that the symptoms of
alcohol withdrawal include tremors, elevated blood pressure,
elevated pulse, sweating, and hallucinations and that the
symptoms of heroin withdrawal resemble the symptoms of the
flu and include nausea, vomiting, and diarrhea. Id.
the booking officer checked on Berry at least twenty times.
Dep. of LaPanta 71-72. In her incident report, she noted that
Berry continued to become sick throughout the day, and his
stool and vomit continued to have the appearance of coffee
grounds. LaPanta Incident Report Aug. 9, 2014, Docket No.
124-2. The booking officer also reported that Berry drank one
large pitcher of Gatorade but not the second pitcher she had
ordered. See VSP Interview of LaPanta, Docket No. 128-4.
Berry did not eat lunch or dinner. Id.; Dep. of
LaPanta 71-72. As Berry's symptoms progressed, an officer
moved Berry's mattress onto the floor to guard against
falling. Dep. of Chad Lee 19-22, Docket No. 101; Dep. of
Robert Counts 28-29, Docket No. 98.
around 5:20 p.m., in response to Berry's request for
assistance with using the toilet, a male officer arrived at
Berry's cell and found Berry confused and disoriented.
Dep. of Counts 28-29. The officer's attempt to assist
Berry with walking to the toilet further disoriented Berry,
who partially closed his eyes, made jerking motions, and
became unresponsive for a few minutes in a "fit" or
"spasms." Id. at 29-30; LaPanta Incident
Report Aug. 9, 2014.
approximately 5:29 p.m., the officer called Buckner-Jones to
Berry's cell. Buckner-Jones Incident Report, Docket No.
123-12. When Buckner-Jones arrived at the cell, she found
Berry lying on the floor, appearing weak and complaining that
he needed to use the toilet. Id. Buckner-Jones
checked Berry's vital signs and found that he had a pulse
of 89 and blood pressure of 130 over 74. Id.
Buckner-Jones then left to call Pitts about the requirements
for sending an inmate to the hospital. Id. Plaintiff
notes that, before Buckner-Jones left to retrieve the
paperwork, she "stood idly in the booking department for
nearly two minutes . . . ." Pl.'s Opp. Br. 13.
Surveillance video shows Buckner-Jones near Berry's cell
from about 5:35:17 until about 5:37:17 before she left to
Buckner-Jones' absence, two officers attempted to lift
Berry into a standing position. Dep. of Counts 36. They
placed Berry on the toilet, and he immediately leaned against
the wall. 14 The officers then placed Berry back on the
mattress and placed a second mattress next to him.
Id. Berry coughed up a small amount of blood.
Id. at 37. The officers moved Berry onto his side
and into the "recovery" position, and when
Berry's coughing seemed to cease, they moved him back
onto the mattress. Id. Within a minute or two, Berry
emitted a large spout of blood from his mouth. Id.
The officers again placed Berry into the recovery position,
and Berry appeared to stop breathing. Id.
p.m., one of the officers called Buckner-Jones to tell her
Berry was throwing up "massive amounts of blood."
Buckner-Jones Incident Report. At 5:38 p.m., the officers
called a code blue for a cardiopulmonary arrest. Id.
returned to booking and saw Berry lying on his back, bleeding
from his mouth, ears, and nose. Id. She and one of
the officers attempted to locate a pulse, but found none.
Id. The officers and Buckner-Jones reported that
they used automatic external defibrillator equipment and
performed CPR on Berry in an attempt to revive him.
Id.; Dep. of Buckner-Jones 79. At 5:45 p.m., an
officer called 911. Dodson Incident Report, Aug. 9, 2014,
Docket No. 128-8; 911 Call Log, Docket No. 125-3. Orange
County EMS responded in less than five minutes. EMS Report,
Docket No. 128-10. At 6:17p.m., Berry was declared dead.
Expert Opinions on Berry's Death
offers the opinion of LPN Kimberly Harvey on the standard of
care applicable to the defendants and the opinion of Dr.
Russell Surasky on both the standard of care and the cause of
Berry's death. Defendants offer the opinion of Dr.
Timothy Allen on both the standard of care and the cause of
who previously provided nursing care in a prison facility,
describes the standard of care for licensed practical nurses.
Report of Kimberly Harvey 2, Docket No. 125-11. She asserts
that standard practice for licensed practical nurses includes
documenting care completely and accurately, monitoring vital
signs, communicating a patient's complaints to a nurse or
physician to assist with future treatment, and ensuring
continuity of care. Id. at 3-5.
opines that the Medical Defendants' conduct fell below
the standard of care in the following ways. She asserts that
Pitts should have inquired about Berry's alcohol use and
withdrawal symptoms during the initial assessment in light of
the arresting and intake officers' reports. Id.
at 4-5. As to Apple-Figgins, Harvey asserts that basic
nursing care required Apple-Figgins to evaluate the booking
officer's report of coffee-ground looking vomit, report
that symptom to a physician, and refrain from ...