United States District Court, W.D. Virginia, Charlottesville Division
Cynthia B. Scott, ET AL., Plaintiffs,
Harold W. Clarke, ET AL., Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
an Eighth Amendment class action concerning the long-term
failure to provide adequate medical care to inmates at the
Fluvanna (Va.) Correctional Center for Women (FCCW). FCCW is
Virginia's primary women's medical prison. The
present defendants are officials employed by the Virginia
Department of Corrections (VDOC).
years of litigation, the parties reached a detailed
settlement agreement (“Settlement Agreement” or
“the agreement”) to provide for constitutionally
adequate medical care at FCCW. On the parties' request,
the Court preliminarily approved the Settlement Agreement. In
February 2016, the Court entered a final judgment order that
conclusively approved the agreement, declared it operative,
and retained jurisdiction to enforce it. The agreement
September 5, 2017, Plaintiffs moved to hold Defendants in
contempt. The Court permitted extensive discovery. A one-week
trial was held in June 2018. The parties provided substantial
post-trial argument, as well as proposed findings of fact and
conclusions of law. The Court finds that, in some respects,
Defendants have breached the Settlement Agreement. The Court
will therefore enforce its terms, although not through
prove civil contempt, a party must show: (1) a valid decree
exists that the alleged contemnor has knowledge of; (2) the
decree was in the movant's favor; (3) the alleged
contemnor violated the decree and knew it was doing so, and;
(4) the movant was harmed as a result. Ashcraft v.
Conoco, Inc., 218 F.3d 288, 301 (4th Cir. 2000).
courts “have inherent authority, deriving from their
equity power, to enforce settlement agreements.”
Hensley v. Alcon Labs., Inc., 277 F.3d 535, 540 (4th
Cir. 2002). To enforce an agreement, a court must first
conclude “that a complete agreement has been reached
and determine the terms and conditions of that
agreement.” Id. If the court finds those
preconditions satisfied, it may reach the merits and
“draw upon standard contract principles” in
enforcing the agreement. Id. at 540-41; Bradley
v. Am. Household, Inc., 378 F.3d 373, 380 (4th Cir.
filed the underlying lawsuit in 2012. (Dkt. 1). Various
portions of their complaint survived dispositive motion
practice. (See generally dkts. 33, 34, 84, 85, 201,
202). The Court also certified a class of inmates seeking
medical treatment at FCCW. (Dkts. 188, 189). After two years
of litigation and days before a scheduled bench trial, the
parties reached a settlement in principle. (Dkts. 203, 204).
They spent the next ten months hashing out the details.
September 15, 2015, the parties jointly filed what the docket
reflects as a “consent motion to approve consent
judgment.” (Dkt. 220). The substance of the filing,
however, referred to “preliminary approval of the
settlement.” (Id. at 1). Attached to the brief
in support of that motion was Exhibit 1, filed as a 27-page
“settlement agreement, ” (dkt. 221-1 at 1, 3),
along with appendices. In a section entitled
“ENFORCEMENT, ” the Settlement
Agreement provided that the Court “shall retain
jurisdiction over the Parties for the purposes of ensuring
the implementation of this Settlement Agreement and shall
preside over such further proceedings as may be necessary or
appropriate to enforce its terms and conditions.”
(Id. at 23).
attached to the brief was a proposed consent order granting
preliminary approval of the settlement. (Dkt. 221-3). The
Court entered the order in substantially similar form to the
proposal. (Dkt. 222). The preliminary approval order
provided, among other things, that the Court “shall
have continuing jurisdiction, during the term of this
Settlement Agreement, to enforce the Agreement's terms,
and to enforce the Final Judgment.” (Id. at
notice to the class, the Court held a fairness hearing where
it received testimony about the propriety of the proposed
Settlement Agreement, heard comments from objectors, and
entertained oral argument. (Dkt. 242). Plaintiffs
subsequently filed-with Defendants' approval-proposed
findings of fact and conclusions of law urging final approval
of the settlement. (Dkts. 255, 259). The parties also
submitted a stipulated proposed final order that would (1)
approve the Settlement Agreement, (2) declare the Settlement
Agreement implemented as of the date of the final order, and
(3) retain jurisdiction with the Court to ensure
implementation of the Settlement Agreement and the
Court's power to preside over “such further
proceedings as may be necessary or appropriate to enforce its
terms and conditions.” (Dkt. 260).
February 5, 2016, the Court entered findings of fact and
conclusions of law. The Court reasoned that the Settlement
Agreement was proper under both Rule 23 and the Prison
Litigation Reform Act, and it found that the objectors'
concerns did not counsel against final approval of the
Settlement Agreement. (Dkt. 261 at 25-30). The Court, in
summarizing the Settlement Agreement, referenced
Plaintiffs' ability to “enforce the settlement,
seek contempt sanctions, or both.” (Id. at 7).
same day, the Court entered its final judgment order. (Dkt.
262). The order granted final approval of the Settlement
Agreement. (Id. at 1-2). The order further stated
that, “[a]s contemplated by the Settlement Agreement,
the Court shall retain jurisdiction for purpose of ensuring
implementation of the Settlement Agreement and shall preside
over such further proceedings as may be necessary or
appropriate to enforce its terms and conditions.”
(Id. at 2). No. party appealed.
over a year-and-a-half later, Plaintiffs filed their motion
to show cause why Defendants should not be held in contempt
for failing to abide by the terms of the Settlement
Agreement-what they called the Court's “consent
judgment” of February 5, 2016. (Dkt. 265). The Court
set the matter for a week-long bench trial in June 2018.
(Dkt. 292). In December 2017, after the parties briefed the
motion, the Court adopted the parties' joint request for
a discovery plan, which set the discovery deadline at May 1,
2018. (Dkts. 303, 304).
next several months, the volume and intensity of discovery
rivaled that of the hardest-fought merits litigation. The
presiding magistrate judge held several conferences and
hearings to resolve various motions and discovery matters,
and he provided a few modest accommodations for the May 1st
discovery deadline to allow the parties to complete discrete
discovery tasks. Meanwhile, the Court, upon inquiry by the
parties, indicated it would rule on the motion to show cause
after receiving Plaintiffs' prima facie evidence
at the June trial. (Dkt. 312).
trial date approached, the parties submitted numerous
Daubert motions, motions in limine, and
trial briefs. (E.g., dkts. 395, 397, 398, 401, 403,
411, 412, 414, 416). Defendants even filed a motion for
summary judgment, less than two weeks before the trial date.
(Dkts. 417, 453).
trial arrived. At the close of Plaintiffs' evidence, the
Court granted the motion to show cause, concluding that
“the prima facie case has been
made”-“there's certainly a prima
facia case of at least to some extent that the
settlement has not been carried out.” (Dkt. 495; dkt.
521 at 69). At the time, Defendants did not argue that
contempt was improper for lack of an operative injunctive
order to enforce. (See dkt. 521 at
Assessments about Compliance at FCCW
the weeks and months after final approval of the Settlement
Agreement, Defendants, their employees, and others associated
with FCCW doubted that the terms of the Settlement Agreement
were being, or would be, met. (See infra FF
he joined FCCW in July 2016, Dr. Thomas Gable, the
then-acting medical director, realized that the level of
medical staffing at FCCW was inadequate, and that staffing
needs exceeded what VDOC (and its contractor that operated
FCCW) previously thought was necessary. (Dkt. 523 at 188,
Gable informed the contractor's CEO, regional vice
president, and chief financial officer of his opinion. (Dkt.
523 at 193).
fact, medical personnel at FCCW had historically been
understaffed dating back to at least 2015. (Dkt. 522 at
February 10, 2016, VDOC's deputy director Cookie Scott
convened a meeting with the “top people” at FCCW,
as well as medical personnel from other VDOC facilities. The
attendees shared 13 “problem” areas where they
believed the contractor was underperforming- e.g.,
sick call, medication errors, mismanagement of patients.
(Dkt. 524 at 185-87).
6. At a
similar session of FCCW's “top people” on
February 23, 2016, deputy director Scott was informed that
the contractor at FCCW was “sinking fast.” (Dkt.
524 at 189).
the spring of 2016, VDOC officials-including a registered
nurse who oversaw medical care at another facility-visited
FCCW. The nurse concluded that sick calls were not being
responded to immediately. (Dkt. 523 at 56, 67).
VDOC Health Services Director Dr. Stephen Herrick admitted,
from May 2016 to the summer of 2017, FCCW had “many
problems” with noncompliance with the Settlement
Agreement. (Dkt. 522 at 188-89).
June 29, 2017-sixteen months after the Court approved the
Settlement Agreement-FCCW's warden wrote to VDOC
leadership: “We have tried to address the agreement
with existing staff and I believe we will eventually fail . .
. . We do not have the resources to adequately address this
settlement agreement. As well at the institutional level, we
don't have the expertise in some of these areas the
settlement agreement demands. Without such resources and
expertise and with the detail of obligations in the
settlement agreement, we are destined to fail at adequately
addressing the same.” (PTX32 at RFP400000585).
warden continued: “We do not know what the answers are.
Sometimes when you are in the middle of a crisis, you do not
know what you need to get out of it. . . . Even though we
have seen some positive trends, we cannot continue down this
path and expect success.” (PTX32 at RFP400000586).
VDOC's annual report of FCCW for the period of July 2016
to July 2017 found that: staffing shortages remained; timely
emergency care transportation was provided barely half of the
time; medical staff sometimes failed to provide vaccines or
communicate test results showing the presence of disease; and
several problems with the grievance system existed. (PTX72 at
2, 16-17, 22-23, 33-34).
During various monthly reports for 2017, the contract monitor
at FCCW found that the compliance rate for various medical
tasks was below fifty percent. These areas included timely
completion of referrals (42%), proper patient counseling on
the effects of refusing medications (28% and 7%), offering
hepatitis vaccines to at-risk patients (0%), HIV counseling
(11%), properly charting and documenting emergency issues
(50%), timely emergency medical transportation (25%), and the
documented return of un-administered medicine (20%). (PTX70
at RFP400000376, RFP100000049, RFP100000055,
Neither FCCW's medical director, nor the VDOC official
charged with monitoring compliance with the Settlement
Agreement, received training on the Settlement Agreement.
(Dkt. 523 at 202; PTX203, Ex. 2 (Whitehead) at 162-63; PTX203
(Herrick) at 70).
FCCW does not provide staff with written training materials
on the Settlement Agreement. (PTX203, Ex. 17 (Aldridge) at
Andrea Nichols arrived as a prisoner at FCCW over thirteen
years ago, at the age of 46. (Dkt. 520 at 107).
began having abdominal cramps in late 2014 or early 2015.
(Dkt. 520 at 107-08). A nurse informed her she had
hemorrhoids, but the cramps did not cease. (Id. at
Nichols began to see blood in her stool and noticed gradual
weight loss. (Dkt. 520 at 109). A FCCW provider recommended a
colonoscopy in both February and April 2015. (Id. at
July 2015, Nichols was transported to the University of
Virginia's medical center for a “digestive
health” examination. (Dkt. 520 at 110).
Nichols was eventually prepped at FCCW in August 2015 for her
colonoscopy. She received a prep solution called GoLYTELY.
(Dkt. 520 at 110-11). The prep solution caused her to vomit
and dry heave. (Id. at 111). Because she could not
drink the prep solution, UVA could not conduct her
During the rest of 2015, FCCW did not attempt to send Nichols
for another colonoscopy. (Dkt. 520 at 111-12).
Nichols's cramping, bleeding, and weight loss continued.
(Dkt. 520 at 112).
After filing several grievances, Nichols placed a sick call
in February 2017. (Dkt. 520 at 113-14).
that February 2017 sick visit, the colonoscopy-originally
ordered in February 2015 and unsuccessfully attempted in
August 2015-was rescheduled. (Dkt. 520 at 114-15).
second colonoscopy was attempted in April 2017. FCCW provided
Nichols with the same GoLYTELY prep solution that made her
sick in August 2015. (Dkt. 520 at 115).
Nichols again threw up the prep solution. She informed the
nurse what had happened and asked for a different prep
solution. (Dkt. 520 at 115). She had to sign a
“refusal” form because she could not keep the
prep solution down. (Id. at 115-16).
FCCW rescheduled the colonoscopy for seven months later, in
November 2017. (Dkt. 520 at 116). In the meantime, no one
approached Nichols about her issues with GoLYTELY.
Nichols's weight loss continued. (Dkt. 520 at 116). She
became afraid because her weight continued to drop and she
“didn't know what was going on.”
the November 2017 colonoscopy, FCCW gave Nichols the GoLYTELY
prep solution for a third time. (Dkt. 520 at 116).
Nichols again could not tolerate the GoLYTELY prep: She began
throwing it up and dry heaving. (Dkt. 520 at 116-17). Once
again, UVA could not complete the colonoscopy because of the
lack of proper prep. (Id. at 117). UVA recommended
using Miralax and Gatorade as a different prep. (Id.
at 117; dkt. 527 at 8).
FCCW rescheduled the colonoscopy for January 2018. (Dkt. 520
at 117). The appointment was canceled because Nichols was not
given any prep solution at all. (Id.). The
colonoscopy was rescheduled again. (Id.).
March 2018, Nichols began having “a lot of
bleeding”-“every time” she had a bowel
movement, “the toilet would fill with blood.”
(Dkt. 520 at 118).
showed the blood to prison staff, who took her to the
infirmary. (Dkt. 520 at 118). Nursing staff asked her to use
the bathroom again, and upon doing so there was not as much
blood. (Id.). Medical personnel thus sent her back
to her building because “it was not an
this time, Nichols was “scared, ” “losing a
lot of blood, ” and felt “helpless.” (Dkt.
520 at 119).
Later in March 2018, FCCW sent Nichols for her colonoscopy.
This time FCCW staff provided Miralax as a prep solution,
which Nichols was able to swallow. (Dkt. 520 at 119).
colonoscopy was successfully completed. (Dkt. 520 at 119).
results showed Nichols had rectal cancer. (Dkt. 520 at 119).
cancer was stage 4, i.e., metastatic. (Dkt. 520 at
cancer had spread to her liver. (Dkt. 520 at 120).
Nichols was “shocked” and
“devastated.” (Dkt. 520 at 120).
of trial, Nichols was receiving chemotherapy. (Dkt. 520 at
is 59 years old. (Dkt. 520 at 120).
release date is September 2020. (Dkt. 520 at 120).
Nichols appeared gaunt and ashen at trial. (Observation of
the morning of July 25, 2017, FCCW prisoner Deanna Niece
began having labored breathing and feeling fatigued while
outdoors. (Dkt. 521 at 25). Niece felt like she would pass
out, and she reported that her legs felt like rubber.
(Id.; PTX56 at SDT00009924). A nurse came to her aid
with a wheelchair and took her inside. (Dkt. 521 at 25).
That afternoon, Niece appeared “very pale, tired, [and]
worn out” as she sat in a wheelchair. (Dkt. 521 at 26).
At the evening pill line, medical staff prevented Niece from
continuing to use a wheelchair, over her protestations.
(Id. at 26-27).
Specifically, “at the continued persistence of Ms.
Niece, ” a nurse “relayed Ms. Niece's
wheelchair request to Dr. Kamal, ” who “felt the
patient did not meet the medical necessity requirement for a
wheelchair.” (PTX56 at SDT00009924). Dr. Kamal did not
see Niece before making this determination. (PTX56 at
night in her cell, Niece still looked “very pale, very
tired-looking, ” and was “having a hard time
breathing.” (Dkt. 521 at 27).
Niece's cellmate awoke that night “to a very
strange gurgling throaty sound coming from [Niece's]
bed.” (Dkt. 521 at 28). Niece did not respond to her
cellmate's calls. Niece was “slumped back in the
corner of the bunk and had a grayish color to her skin. And
she had blood running out of her mouth.” (Dkt. 521 at
cellmate “immediately jumped out of [her] bed and went
and pushed the call button in the room to get ahold of the
officers.” (Dkt. 521 at 28). She also ran to another
room and called for help. (Id.). An officer arrived
and radioed that there was a medical emergency. (Id.
“few minutes later, two nurses came casually walking
in” to Niece's cell. (Dkt. 521 at 29).
nurses brought no medical equipment with them. (Dkt. 521 at
nurses observed the severity of Niece's condition and
needed a stretcher, but the only one available was “all
the way across the grounds to building eight.” (Dkt.
521 at 29). A correctional officer ran to get the stretcher.
(Id.). Although the officer called the medical
building for assistance, the nurses did not, and there was no
response to the call. (Id. at 29-30).
nurses attempted to lift Niece when the stretcher arrived,
but they could not. (Dkt. 521 at 30).
Blood continued to run from Niece's mouth. (Dkt. 521 at
officer then left to find oxygen, and others performed CPR.
(Dkt. 521 at 30).
Eventually EMTs arrived and tried to save Niece's life.
(Dkt. 521 at 31).
Niece tried to speak but her words were inaudible. (Dkt. 521
Then Niece fell silent. (Dkt. 521 at 31).
Then the resuscitation machines fell silent. (Dkt. 521 at
Niece died in the floor of her prison cell, on July 25, 2017.
(Dkt. 521 at 25-26; PTX56 at SDT00009925).
Niece's release date from prison was less than three
weeks away: August 12, 2017. (Dkt. 521 at 33-34; see
PTX56 at SDT00009925).
the incident report and death review stated, neither a
suction machine nor oxygen nor a stretcher/backboard were
readily available in the unit housing Niece. (PTX56 at
SDT00009925-26; see dkt. 522 at 57-58).
court-approved compliance monitor, Dr. Nicholas Scharff,
found Niece's death to be “remarkable”
because she collapsed in the yard the morning of her death
and was sent back to her housing unit without seeing a
doctor. (Dkt. 522 at 58-59). Indeed, “there was no
detailed history or ...