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Scott v. Clarke

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

January 2, 2019

Cynthia B. Scott, ET AL., Plaintiffs,
Harold W. Clarke, ET AL., Defendants.



         This is 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).[1]

         After 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 provides similarly.

         On 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 contempt.


         To 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).

         District 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. 2004).


         Plaintiffs 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.

         On 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).

         Also 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 5).

         After 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).

         On 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).

         That 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.

         Just 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).

         For the 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).

         As the 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).[2]

         Finally, 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 70-77).[3]

         FINDINGS OF FACT[4]

         Internal Assessments about Compliance at FCCW

         1. In 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 ¶¶ 2-11).[5]

         2. When 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, 191-93).

         3. Dr. Gable informed the contractor's CEO, regional vice president, and chief financial officer of his opinion. (Dkt. 523 at 193).

         4. In fact, medical personnel at FCCW had historically been understaffed dating back to at least 2015. (Dkt. 522 at 199-200, 201-02).

         5. On 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).

         7. In 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).

         8. As 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).[6]

         9. On 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).

         10. The 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).

         11. 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).

         12. 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, RFP3600017432-33).

         13. 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).

         14. FCCW does not provide staff with written training materials on the Settlement Agreement. (PTX203, Ex. 17 (Aldridge) at 125-26).

         Andrea Nichols's Colonoscopy

         15. Andrea Nichols arrived as a prisoner at FCCW over thirteen years ago, at the age of 46. (Dkt. 520 at 107).

         16. She 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 108).

         17. 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 109).

         18. In July 2015, Nichols was transported to the University of Virginia's medical center for a “digestive health” examination. (Dkt. 520 at 110).

         19. 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 colonoscopy. (Id.).

         20. During the rest of 2015, FCCW did not attempt to send Nichols for another colonoscopy. (Dkt. 520 at 111-12).

         21. Nichols's cramping, bleeding, and weight loss continued. (Dkt. 520 at 112).

         22. After filing several grievances, Nichols placed a sick call in February 2017. (Dkt. 520 at 113-14).

         23. At 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).

         24. The 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).

         25. 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).

         26. 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. (Id.).

         27. 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.” (Id.).

         28. For the November 2017 colonoscopy, FCCW gave Nichols the GoLYTELY prep solution for a third time. (Dkt. 520 at 116).

         29. 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).

         30. 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.).

         31. By 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).

         32. She 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 emergency.” (Id.).

         33. By this time, Nichols was “scared, ” “losing a lot of blood, ” and felt “helpless.” (Dkt. 520 at 119).

         34. 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).

         35. The colonoscopy was successfully completed. (Dkt. 520 at 119).

         36. The results showed Nichols had rectal cancer. (Dkt. 520 at 119).

         37. The cancer was stage 4, i.e., metastatic. (Dkt. 520 at 119-20).

         38. The cancer had spread to her liver. (Dkt. 520 at 120).

         39. Nichols was “shocked” and “devastated.” (Dkt. 520 at 120).

         40. As of trial, Nichols was receiving chemotherapy. (Dkt. 520 at 120).

         41. She is 59 years old. (Dkt. 520 at 120).

         42. Her release date is September 2020. (Dkt. 520 at 120).

         43. Nichols appeared gaunt and ashen at trial. (Observation of the Court).[7]

         Deanna Niece

         44. In 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).

         45. 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).

         46. 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 SDT00009925).

         47. At night in her cell, Niece still looked “very pale, very tired-looking, ” and was “having a hard time breathing.” (Dkt. 521 at 27).

         48. 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 28).

         49. The 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. at 28-29).

         50. A “few minutes later, two nurses came casually walking in” to Niece's cell. (Dkt. 521 at 29).

         51. The nurses brought no medical equipment with them. (Dkt. 521 at 29).

         52. The 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).

         53. The nurses attempted to lift Niece when the stretcher arrived, but they could not. (Dkt. 521 at 30).

         54. Blood continued to run from Niece's mouth. (Dkt. 521 at 30).

         55. An officer then left to find oxygen, and others performed CPR. (Dkt. 521 at 30).

         56. Eventually EMTs arrived and tried to save Niece's life. (Dkt. 521 at 31).

         57. Niece tried to speak but her words were inaudible. (Dkt. 521 at 31).

         58. Then Niece fell silent. (Dkt. 521 at 31).

         59. Then the resuscitation machines fell silent. (Dkt. 521 at 21).

         60. Niece died in the floor of her prison cell, on July 25, 2017. (Dkt. 521 at 25-26; PTX56 at SDT00009925).

         61. Niece's release date from prison was less than three weeks away: August 12, 2017. (Dkt. 521 at 33-34; see PTX56 at SDT00009925).

         62. As 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).

         63. The 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 ...

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