Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thornhill v. Aylor

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

October 18, 2017

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,
v.
F. GLENN AYLOR, et al, Defendants.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad, 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 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.

         Factual Background

         The 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).

         I. CVRJ Policies on Medical Care to Inmates

         All 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.

         The 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.

         The 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.

         For 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.

         The 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. at 141-42.

         II. Berry's Experience at the CVRJ

         After 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.

         Berry 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.

         Pitts 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.

         Following 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.

         The 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.

         The 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. at 14.

         Berry 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 143.

         That 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 fine. Id.

         The 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.

         Shortly 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 heaving. Id.

         Jail 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.

         When 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.

         Apple-Figgins 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.

         Before 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. at 54.

         Meanwhile, 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.

         At 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.

         At 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 retrieve paperwork.

         During 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.

         At 5:36 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.

         Buckner-Jones 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. Id.

         III. Expert Opinions on Berry's Death

         Plaintiff 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 death.

         A. LPN Harvey

         Harvey, 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.

         Harvey 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.