in the united states district court for the western … · 2020-01-09 · compliance. see ex. 1,...

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION

CYNTHIA B. SCOTT, et al., ) ) Plaintiffs, ) ) Case No. 3:12-cv-00036-NKM/JCH v. ) Sr. Judge Norman K. Moon ) HAROLD W. CLARKE, et al., ) ) Defendants. ) )

PLAINTIFFS’ PRETRIAL BRIEF

Mary C. Bauer, VSB No. 31388 ([email protected]) Brenda E. Castañeda, VSB No. 72809 ([email protected]) Angela Ciolfi, VSB No. 65337 ([email protected]) Abigail Turner, VSB No. 74437 ([email protected]) Adeola Ogunkeyede (admitted pro hac vice) ([email protected]) Shannon M. Ellis, VSB No. 89145 ([email protected]) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 (434) 977-0553 Philip Fornaci (admitted pro hac vice) ([email protected]) Elliot Mincberg WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000

Theodore A. Howard (admitted pro hac vice) ([email protected]) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000 Kristi C. Kelly, VSB No. 72791 [email protected] Andrew Guzzo, VSB No. 82170 [email protected] Casey S. Nash, VSB No. 84261 [email protected] KELLY & CRANDALL, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 (703) 424-7576 Attorneys for Plaintiffs

Case 3:12-cv-00036-NKM-JCH Document 426 Filed 05/29/18 of 56 Pageid#: 9498

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TABLE OF CONTENTS Page(s)

TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION AND STATEMENT OF THE CASE .............................................................. 2

STATEMENT OF FACTS ............................................................................................................. 3

A. VDOC Did Not Take Its Obligations Under The Settlement Agreement Seriously ................................................................................................................. 3

B. VDOC Allowed FCCW To Languish In A Void Of Leadership............................ 8

C. VDOC Flouted Its Responsibility To Hold Its Contractor Accountable .............. 10

D. Recent Changes At FCCW Are Untested, Unreliable And, In All Probability, Unsustainable ........................................................................................................ 13

E. Systemic Shortcomings In The Provision Of Medical Care At FCCW Continue To Jeopardize Women’s Lives .............................................................................. 15

STANDARD OF REVIEW .......................................................................................................... 20

ARGUMENT ................................................................................................................................ 22

I. PLAINTIFFS’ EVIDENTIARY SHOWING SATISFIES THE APPLICABLE STANDARDS FOR THE ISSUANCE OF AN ORDER TO SHOW CAUSE AND FOR A FINDING THAT THE VDOC IS IN CONTEMPT FOR VIOLATION OF THIS COURT’S CONSENT ORDER ....................................................................................... 22

A. Plaintiffs Have Satisfied The Threshold Standard For The Issuance Of An Order To Show Cause ..................................................................................................... 22

B. The VDOC Has Breached Its Obligations Under The Parties’ Settlement Agreement And Thus Violated The Consent Order ............................................. 23

1. The First Two Elements Of The Four-Part Test For Contempt Are Clearly Met ............................................................................................................ 23

2. The VDOC Has Violated The Consent Order’s Terms And Has Actual Knowledge Of Its Violations .................................................................... 24

a. The Compliance Monitor’s Findings And Conclusions ............... 25

b. The VDOC’s Own Information And Documents ......................... 32

3. The Plaintiff Class Has Suffered Resulting Harm .................................... 36

II. THE VDOC’S PROFFERED DEFENSES OF “GOOD FAITH” AND “SUBSTANTIAL COMPLIANCE” ARE INSUFFICIENT TO AVOID A FINDING OF LIABILITY FOR CIVIL CONTEMPT ......................................................................................................... 39

III. A MULTI-FACETED REMEDY FOR THE VDOC’S CONTEMPT IS WARRANTED AND APPROPRIATE ...................................................................................................... 45

CONCLUSION ............................................................................................................................. 51


ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ashcraft v. Conoco, Inc., 218 F.3d 288 (4th Cir. 2000) .............................................................................................21, 23

Buffalo Wings Factory, Inc. v. Mohd, 574 F. Supp. 2d 574 (E.D. Va. 2008) ......................................................................................21

Carbon Fuel Co. v. United Mine Workers of Am., 517 F.2d 1348 (4th Cir. 1975) .................................................................................................45

In re Cherry, 247 B.R. 176 (Bankr. E.D. Va. 2000) ......................................................................................40

Chesapeake Bank v. Berger, Case No. 4:14cv66, 2014 WL 5500872 (E.D. Va. Oct. 30, 2014), app. dismissed, 629 F. App’x 501 (4th Cir. 2015) ...........................................................................41

Coleman v. Brown, 938 F. Sup. 2d 955, 988 (E.D. Cal. 2013) ...............................................................................45

Coleman v. Brown, Case No. 2:90-cv-0520 ............................................................................................................45

Colonial Williamsburg Found. v. Kittinger Co., aff’d, 38 F.3d 133 (4th Cir. 1994), 792 F. Supp. 1397 (E.D. Va. 1992) .............................................................................21, 23, 45

Colorado v. New Mexico, 467 U.S. 310 (1984) ................................................................................................................22

Connolly v. J.T. Ventures, 851 F.2d 930, 933 (7th Cir. 1988) ...........................................................................................45

Consolidation Coal Co. v. Local 1702, United Mineworkers of Am., 683 F.2d 827 (4th Cir. 1982) ...................................................................................................41

Cree, Inc. v. Bain, Case No. 1:15-cv-547, 2015 WL 12911462 (M.D.N.C. July 20, 2015) ..................................21

Dunkin’ Donuts, Inc. v. Three Rivers Entm’t and Travel, 42 F. App’x 573 (4th Cir. 2002) ........................................................................................28, 40

Frew v. Hawkins, 540 U.S. 431 (2004) ................................................................................................................21


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In re Gen. Motors Corp., 61 F.3d 256 (4th Cir. 1995) .....................................................................................................45

McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949) .................................................................................................................40

McLean v. Cent. States, SE and SW Areas Pension Fund, 762 F.2d 1204 (4th Cir. 1985) .................................................................................................40

Mercer v. Mitchell, 908 F.2d 763 (11th Cir. 1990) .................................................................................................22

S.E.C. v. SBM Inv. Certificates, Inc., Civ. Action No. DKC 06-0866, 2012 WL 706999 (D. Md. March 2, 2012) ..........................40

Schwartz v. Rent-A-Wreck of Am., 261 F. Supp. 3d 607 (D. Md. 2017) ...................................................................................40, 41

Thompson v. U.S. Dep’t. of Hous. & Urban Dev., 404 F.3d 821 (4th Cir. 2005) ...................................................................................................21

In re Tucker, 526 B.R. 616 (Bankr. W.D. Va. 2015) ....................................................................................40

U.S. v. Darwin Constr. Co., 873 F.2d 750 (4th Cir. 1989) ...................................................................................................41

United States v. Ali, 874 F.3d 825 (4th Cir. 2017) ........................................................................................... passim

United States v. Ali, Case No. PWG-13-3398, 2016 WL 8628348 (D. Md. March 29, 2016) .................................21

Victor Stanley, Inc. v. Creative Pipe, Inc., Case No. MJG-06-2662, 2016 WL 1597119 (D. Md. April 20, 2016) ...................................40

Wyatt ex. rel. Rawlins v. Sawyer, 80 F. Supp. 2d 1275 (M.D. Ala. 1999) ....................................................................................22

Wyatt v. Rogers, 92 F.3d 1074 (11th Cir. 1996) ................................................................................................22

Statutes

Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A) ............................................................44


Plaintiffs Cynthia B. Scott, et al., by their attorneys, hereby submit their Pretrial Brief in

anticipation of the hearing set to commence on June 11, 2018, to address the Plaintiffs’ Motion

for Order to Show Cause Why The Defendants Should Not Be Held In Contempt, filed

September 6, 2017, (ECF Docket No. 265).

The VDOC’s persistent non-compliance with the Consent Order intended to provide

adequate medical care at the Fluvanna Correctional Center for Women (FCCW) must end. The

women incarcerated at FCCW comprising the Plaintiff class continue to suffer from woefully

inadequate medical care in patent breach of the obligations the Defendants willingly assumed

under the provisions of the Settlement Agreement reached by the parties and approved and

entered by this Court as a Consent Order on February 5, 2016. Even before this Court entered

the Consent Order, VDOC officials knew that its for-profit contractor, Armor Correctional

Healthcare (“Armor”) was failing. Persistent understaffing led to staff turnover, failures in

training and supervision, miscommunications, deadly medical mistakes and, ultimately, to a

culture of unhappiness and uncaring that permeates FCCW’s health care operations to this day.

A critical lack of leadership at FCCW was allowed to fester. Essentially, at every turn, and at

every level, VDOC failed to hold the contractor accountable for providing an appropriate level of

care at FCCW. Now, approaching two and one-half years after the Settlement Agreement was

approved, and some nine months after the filing of the Show Cause Motion, the Plaintiffs still

experience deprivation or mismanagement of care for their serious illnesses, unalleviated chronic

pain and a substantial risk of harm, including preventable, premature death, attributable to the

VDOC’s consistent failure to provide constitutionally-adequate medical care at FCCW as

mandated by the Consent Order.


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INTRODUCTION AND STATEMENT OF THE CASE

For many months after the parties’ Settlement Agreement was formally approved by this

Court and entered as a Consent Order, the Compliance Monitor designated by the Order—

Nicholas Scharff, M.D.—rendered Reports reflecting findings focused on the host of ways in

which the VDOC and FCCW failed to comply, or even make meaningful progress towards

compliance, with many of the critical requirements for meeting the standard for constitutionally-

adequate medical care addressed in the Settlement Agreement. See generally Memorandum of

Law in Support of Plaintiffs’ Motion for Order to Show Cause at 5-13 (summarizing Dr.

Scharff’s Reports and findings set forth therein) & Exhibits 4-8 thereto (ECF Dkt. No. 266).

Gravely disappointed by the VDOC’s lack of significant progress towards the objectives

of the Settlement Agreement and confronted, on a day-to-day basis, by the substantial risk of

harm attributable to FCCW’s continuing lack of responsiveness to their serious medical needs,

the Plaintiffs, by counsel, served the VDOC with a Notice Letter on April 20, 2017, pursuant to

Section V.2. of the Agreement. See ECF Dkt. No. 266, Exh. 2. Drawing upon first-hand

accounts of class members continuing to experience substandard care of an ongoing nature, as

well as Dr. Scharff’s reported findings, the Plaintiffs demanded immediate remedial efforts from

VDOC, suggesting concrete courses of action that the VDOC and its contractor might adopt,

where possible, to address the problems highlighted.

The VDOC, by counsel, provided its response to the Plaintiffs’ Notice Letter on May 22,

2017 (ECF Dkt. No. 266, Exh. 9), flatly rejecting the core premise of the Plaintiffs’ submission

and unreservedly declaring that “FCCW is not in breach of the settlement agreement with [regard

to] any of the provisions you cite.” Id. at 10. This unequivocal refusal on the part of the VDOC

to acknowledge any continuing deficiencies in the quality of the medical care provided at

FCCW, or to meet with Plaintiffs’ representatives to discuss working cooperatively on possible


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solutions, left the Plaintiffs with no viable alternative to the preparation and filing of their Show

Cause Motion.

By filings dated October 10, 2017, the VDOC opposed the Show Cause Motion and

requested that it be dismissed with prejudice. ECF Dkt. Nos. 285, 286. However, as

demonstrated in the Plaintiffs’ Reply submission, filed October 31, 2017 (ECF Dkt. No. 293),

the VDOC Opposition failed to identify any viable basis for such dismissal and this Court, sub

silentio, denied the requested relief, thus setting the stage for the upcoming hearing on Plaintiffs’

Motion.

STATEMENT OF FACTS

A. VDOC Did Not Take Its Obligations Under The Settlement Agreement Seriously

This Court admonished the parties at the November 2015 Fairness Hearing to see to it

that the “pretty egregious” situation at FCCW in 2014 did not continue unabated. See Tr. of

Fairness Hearing, ECF Dkt. 251 at 96:3-15 (“And I hope you will monitor this carefully so that

the situation and the incidents that we have heard discussed here today do not occur again.”).

Approaching two years later, in September 2017, VDOC had failed completely to provide

oversight and direction and to hold medical, management and correctional staff accountable for

compliance. See Ex. 1, Scharff October 2017 Report.1 Instead VDOC's complacency or

deliberate indifference had resulted in compliance in only 7 of 23 indicators. See Ex. 2, Scharff

October 2017 Performance Indicators.2

1 Dr. Scharff’s Report is dated Oct 9, 2017, but the ratings are based on a monitoring visit taking place in August 2017. See Ex. 1. 2 Performance Indicator xi, Utilization Management, is treated as a single indicator although it consists, for purposes of Dr. Scharff’s Reports, of three sub-indicators.


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Without question, even as the Court entered the Consent Order, VDOC knew that Armor

was not providing, and likely could not provide, constitutionally-adequate care for women at

FCCW. See, e.g., Ex. 3, VDOC 30(b)(6) Dep. of Cookie Scott, May 1, 2017, Ex. 13 (minutes of

a Feb. 3, 2016 Medical Meeting state: “February 1st—not satisfied with contractor and will do

letter; will give Armor until May 1st to turn things around…”). At meetings convened by VDOC

officials in the days and weeks after the Court entered the Consent Judgment, the state of

healthcare at FCCW was variously described as “sinking fast” and “not working”. See Ex. 3,

Scott Dep., Ex. 13-18 at Bates No. RFP400000865 and RFP400000853. A clear sentiment

emerged internally at VDOC that it needed to “take [an] aggressive approach” to correct course

on the deficiencies in medical care present under Armor’s leadership. Id. at RFP400000865.

VDOC also acknowledged that even with a plan to fix the problems in place, Armor’s ability to

execute it would be a problem. Id. at RFP400000850. While DOC briefly considered taking over

responsibility for FCCW from Armor, it abandoned that plan in May of 2016 for reasons that

remain unclear. Instead, and unreasonably, in the face of well-founded concerns about Armor’s

performance, VDOC continued to allow Armor to direct healthcare services at FCCW.3 As

predicted by VDOC officials, Armor failed at capably executing any reforms.

A key reason for Armor’s failure was the financing scheme designed by VDOC—the

same scheme roundly criticized by this Court in 2014—to allocate to the contractor the full risk

that health care costs may exceed the per prisoner price dictated by the pricing schedule in the

contract, and whereby the contractor’s profit increases as the cost of care it provides to the

3 Despite numerous requests, Defendants have been unable to produce the minutes of the May 2, 2016 Health Care Planning meeting at which they apparently decided to continue Armor’s contract. Given VDOC’s claim that its decision was attributable to a noticeable improvement in Armor’s performance during that time period, the absence of supporting documentary evidence is perplexing, to say the least.


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prisoners decreases. See Ex. 4, VDOC 30(b)(6) Dep. of F. Schilling, May 1, 2017, 35:15-25; see

also ECF Dkt. No. 188 at 4 (“The contractor using the capitated system receives a fixed amount

of money per prisoner, and its profit increases as the cost of care it provides to the prisoners

decreases, regardless of how much or how little care is provided to the prisoners.”). As the Court

observed in its opinion on summary judgment in this case, “a reasonable fact-finder could

conclude that a reduced level of medical care was the virtually inevitable result of the VDOC’s

decision to set up the contract in this way.” See ECF Dkt. No. 201 at 43 (emphasis added).

Despite the Court’s expressed concerns in 2014 about the capitated financing model, the new

Armor contract, effective November 1, 2015, was set up in exactly the same way. F. Schilling

30(b)(6) Dep., 35:16-25.

Over one year into the Settlement Agreement, in April 2017, VDOC had not achieved

full-compliance in more than five of twenty-three performance indicators tracked by the

Compliance Monitor. See Ex. 5, Scharff June 2017 Performance Indicators (based upon April

2017 visit). The minimal changes undertaken by Armor at VDOC’s meek insistence in early

2016 failed to move the needle towards achieving actual or sustainable improvements in the

quality of medical care. This period was punctuated by multiple patient deaths followed by

uncritical self-assessments of ways in which healthcare at FCCW may have contributed to those

deaths. Ex. 6, Report of Dr. Robert Greifinger, March 15, 2018, ¶¶ 20, 35.4 In fact, by early

4 Plaintiffs’ medical expert, Dr. Robert Greifinger, a physician licensed by the State of New York, has extensive experience in correctional healthcare, including the following: managing the provision of medical care at Riker’s Island, New York City’s main jail complex, from 1987 to 1989; serving for six years as the Chief Medical Officer for the New York State Department of Corrections, where he had overall responsibility for the provision of all inmate health services for a system involving 68,000 prisoners; serving as a court-appointed monitor overseeing medical care in the jails in Philadelphia, Pennsylvania; Fulton County, Georgia; DeKalb County, Georgia; Albuquerque, New Mexico; and for the State of Alabama’s women’s prison from 2006 to 2009. Dr. Greifinger is currently the court-appointed monitor regarding medical care at the


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2017, VDOC’s contract monitor supervisor, Cathy Thomas, observed a serious “need to see

improvements” and expressed that “[Armor] can’t keep messing up in the same areas.” Ex. 7,

VDOC 30(b)(6) Dep. of S. Herrick, April 30, 2018, Ex. 22 (Bates No. RFP 40000736). In short,

despite having identified opportunities for healthcare improvements at FCCW, in relying on an

inept contractor to execute those improvements, VDOC provided no bona fide remedies to the

problems, and certainly none that were sustainable.

Compounding this problem, VDOC did not initially take seriously its obligations under

the Settlement Agreement to ensure the quality and sustainability of any reforms made. VDOC

has admitted that the contract was never adequately funded from the beginning. See Ex. 8, S.

Herrick 30(b)(6) Dep., 54:23-55:2 ("There were several areas, physical therapy, the number of

LPNs, number of RNs and the requirements of the settlement agreement, all led us to believe that

we did not fund it well enough for Armor in particular at Fluvanna.").

As yet another example of VDOC’s seemingly mulish insistence on adhering to business

as usual, the staffing plan laid out by VDOC in the 2015 contract for FCCW was never

reasonably calculated to provide a constitutional level of care, which even VDOC now admits. S.

Herrick 30(b)(6) Dep., 54:15-2 (“[VDOC] really didn’t staff it appropriately from the beginning .

. .”). Indeed, VDOC made few changes in the staffing plan for FCCW when it put the contract

Metropolitan Detention Center in Albuquerque, the Orleans Parish Prison in New Orleans, Louisiana, and the Miami-Dade County jail, and he previously had responsibility to monitor multiple jail and prison correctional healthcare systems on behalf of the Civil Rights Division of the United States Department of Justice. Additionally, he served as a consultant to the Office of Civil Rights and Civil Liberties of the U.S. Department of Homeland Security. Dr. Greifinger has authored or co-authored dozens of articles addressing correctional medicine published in peer-reviewed journals; and is the editor of, as well as the author of one chapter in, the Second Edition of Clinical Practice in Correctional Medicine (2006). He has been found qualified to testify as an expert witness with respect to correctional medical care standards and practices by courts in more than 60 cases from 2000 to the present.


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out to bid in 2014 and made no changes in the staffing plan in light of the Consent Judgment. F.

Schilling 30(b)(6) Dep., 38:23-40:7. Despite a high level of dependency on temporary agency

nurses in 2016, Ex. 9, Scharff September 2016 Report at 2, Armor received no monetary staffing

penalties in 2016. Ex. 10, Defendants’ Responses to Plaintiffs’ Request for Admissions (“RFA

Responses”), No. 19. What is more, the contractor was never able to staff the facility even at the

inadequate level provided in the contract, resulting in the imposition of $220,000 in penalties in

2017. RFA Responses, No. 20.

Persistent under-staffing led to unhappiness that drove rapid staff turnover. See, e.g., Ex.

11, D. Whitehead Dep., February 14, 2018, 77:6-78:7; Ex. 12, B. Seabert Dep., April 12, 2018,

291:24-294:10. There were never enough experienced staff, leading to failures in training and

supervision, miscommunications, deadly medical mistakes, and ultimately to a culture of

uncaring that permeates FCCW’s health care operations to this day. See Ex. 13, Scharff March

2018 Report at 6-7; Ex. 6, Greifinger Report, ¶¶ 15, 62, 68.

Two months after Plaintiffs increased pressure on VDOC to comply with the settlement

by sending it an official Notice of Noncompliance—FCCW’s Warden, Jeffrey Dillman,

acknowledged, in a June 2017 letter to senior VDOC officials, including David Robinson, that

from the outset of the compliance period, VDOC failed to provide the guidance, resources or

expert staffing necessary for those in charge of healthcare at FCCW to satisfy the requirements

of the settlement. Ex. 14, S. Herrick 30(b)(6) Dep., Ex. 31 (Bates No. RFP400000585). Mr.

Dillman observed that FCCW “do[es] not have the resources to adequately address this

settlement agreement” and “cannot continue down this path and expect success.” Id. He further

opined that without significant investment by VDOC—which clearly had not been forthcoming


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as of that date—“we are destined to fail at adequately addressing” the requirements of the

Settlement Agreement. Id.

B. VDOC Allowed FCCW To Languish In A Void Of Leadership

VDOC ignored the longstanding failures in leadership at FCCW that allowed an

environment of hostility and lack of compassion for patients to flourish. FCCW had no full-time

on-site medical director from June 2016 to May 2018. Ex. 13, Scharff March 2018 Report at 16.

Instead, the position had been filled by Acting Medical Director Dr. Thomas Gable, who has

been on-site at FCCW less than half-time, and who does not have access to patient records when

off-site. Ex. 15, T. Gable Dep., 53:23-25. VDOC has been on notice since at least January 2017

that Dr. Scharff considers the absence of a permanent, full-time medical director to be one of the

most, if not the most serious, deficiency at FCCW, yet still has not permanently filled the

position. See Ex. 16, Scharff March 2017 Report at 16.5

Compounding the clinical leadership vacuum is the alarming turnover in FCCW’s most

senior administrative position, the Health Services Administrator (HSA); FCCW is now on its

sixth HSA since implementation of the Settlement Agreement. Ex. 10, RFA Responses, No. 18.

Even when FCCW managed to retain full-time senior medical staff, its ability to provide

appropriate leadership and oversight was crippled by FCCW’s chronic staffing shortages. For

instance, from September 2017 to February 2018, FCCW’s Director of Nursing worked 70-80

hours per week on the night shift to cover staffing shortages. Ex. 12, B. Seabert Dep. 41:26-27.

Dr. Scharff has repeatedly concluded that the long-term lack of clinical leadership at

FCCW is unacceptable under the Settlement Agreement, as it exacerbates “clinical and

5 Recently, Armor agreed to compensate Dr. Gable at a level allowing him to agree to serve on-site full-time at FCCW until a permanent Medical Director can be hired. See Ex. 39, S. Herrick Dep., May 18, 2018, 61:6-62:18. Clearly, this is something VDOC or Armor could have done a lot sooner.


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procedural error” and “risk[s] patient injury, including serious injury.” See Ex. 17, Scharff

January 2018 Report at 23. To be sure, the absence of stable medical leadership on the ground at

FCCW permits a culture of indifference and hostility to patients to fester, as the following

examples demonstrate:

• Patients submitting medical grievances receive responses that Dr. Greifinger described as “appalling” and “cynical,” demonstrating “a pervasive cynical attitude that puts patients at risk of serious harm.” Ex. 6, Greifinger Report, ¶ 56.

• Long-term patients confined to the FCCW Infirmary languish in their cells without appropriate access to common areas or outdoor recreation. See Ex. 18, FCCW Thursday QA/CQI Meeting Minutes, April 5, 2018 (“Offenders Cairns and Levy went outside for the first time in a significantly long time. Loved the experience. Saw the dogs, had grass in their hands, felt the breeze.”) Their charts do not reflect whether basic daily care, such as whether a patient has been turned, is provided. See Ex. 19, Report of Jackie Clarke-Weisman at 15;6 Ex. 12, Seabert Dep., 250:4-251:10.

• Patients who earn as little as $0.23 per hour continue to be charged for chronic medications in blatant violation of policy. See Ex. 13, Scharff March 2018 Report at 14 (finding inappropriate charges in approximately 20% of the charts he reviewed and observing that “[r]epeated charging persists for multiple visits for the same problem, and patients are charged for visits renew chronic medications or for services related to chronic conditions.”).

It is obvious that the persistent on-the-ground leadership vacuum at FCCW is in large

part due to the indifference of central VDOC officials. Based on his October 2016 monitoring

visit, eight months after implementation of the Settlement Agreement, Dr. Scharff described

6 Jackie Clark-Weisman is a Registered Nurse licensed in the State of California. She has more than 30 years of experience in providing direct patient care and managing health care systems in various settings (general acute hospital, state hospital, prisons and county jails). She is currently the Health Care Director for the largest penal institution in the country, the Los Angeles County Jail, which has a population of over 18,000 inmates, of which approximately 2,400 are female. Ms. Clark-Weisman has worked in the correctional field for over twenty years. From 2005-2007, she worked as a court-appointed expert in Plata v. Wilson, where she documented systemic inadequacies in health care resulting in the court placing the California Department of Corrections Health Care under federal receivership. At the request of the Receiver, Mr. Robert Sillen, Ms. Clark-Weisman managed the health care at San Quentin State Prison from 2009-2012, where she oversaw the care provided to 4,600 inmates and more than 550 staff. From 2012-2016, she was first the Chief Executive Officer of Health Care for the California Medical Facility and then for the California Correctional Health Care Facility in Stockton. Ms. Clark-Weisman has served as an expert in a number of cases concerning correctional health care.


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VDOC’s involvement at FCCW as “not adequate in the setting of so many problems and so

much patient dissatisfaction, [and not] consistent with its obligations under the Settlement

Agreement.” See Ex. 20, Scharff January 2017 Report at 20.

C. VDOC Flouted Its Responsibility To Hold Its Contractor Accountable

VDOC failed to hold the contractor accountable for providing the appropriate level of

care for patients at FCCW. VDOC never took seriously its obligation to train staff on the

Settlement Agreement (see, e.g., Ex. 21, E. Aldridge Dep., 125:21-126:1 (indicating there are no

training materials on the Settlement Agreement); Id. 126:6-127:4 (indicating the warden’s

training outline has not been revised since May 1, 2015); Id. 127:19-128:8 (the warden’s training

outline contains one paragraph about the Settlement Agreement, and he does not elaborate on

that). Nor did VDOC make sure that its Director of Health Services had a final, signed copy of

the Settlement Agreement so that he knew what needed to be done (Ex. 22, Dep. of S. Herrick,

Feb. 16, 2018, 39:16-40:8). Most egregiously, the contract monitor—the very person charged by

VDOC with identifying problems related to Settlement Agreement implementation, Ex. 8, S.

Herrick 30(b)(6) Dep., 70:8-70:18—has never received training on the Settlement Agreement.

Ex. 11, D. Whitehead Dep., 162:12-163:5.

Despite widespread deficiencies documented by VDOC’s own contract monitor, Distarti

Whitehead, the contract monitoring system is set up only to document those failures. Ms.

Whitehead’s November 2017 audit revealed non-compliance with the Settlement Agreement in a

number of areas, including, among other things, patient care in restricted housing, timely action

on consultants’ recommendations, infirmary care and documentation, wound care, and timely

emergency transfer. Ex. 23, Contract Monitor Manager Monthly Reports for 2017 (November

2017 at Bates No. RFP100000109-112). Most of the problems listed in the November 2017

audit were known and cited in the audits dated November 2016 and April 2017. Ex. 6,


11

Greifinger Report, ¶¶ 23-24. Ms. Whitehead typically sends her reports to senior VDOC

officials, but does not recall receiving a response other than "great job Armor." D. Whitehead

Dep., 27:10-17.

VDOC’s own annual report for the period between June 2016 and June 2017

acknowledges poor performance in many areas, including staffing, intake health assessments,

timely sick call access, medication continuity, and close to a dozen other areas. Ex. 24, FCCW

Annual Report July 2016-July 2017; see also Ex. 6, Greifinger Report, ¶ 25. But despite

identifying these persistent problems, the annual report contains few plans for improvement or

re-measurement of progress in those areas. Ex. 6, Greifinger Report, ¶ 26. Tellingly, the only

response to the annual report when Ms. Whitehead presented it to VDOC’s senior officials in the

Health Services Unit were questions about the grievance system and requests to fix a

grammatical error here and there. D. Whitehead Dep., 115:22-25. These documented failures

led Dr. Greifinger to concluded that VDOC’s deliberate inattention to high-risk situations and

known barriers to timely access to an appropriate level of care for FCCW patients is appalling.

Ex. 6, Greifinger Report, ¶ 61.

Just as in 2014, VDOC has consistently abrogated its duty to hold the contractor

accountable for its failures in care, “entrust[ing] to the contractor to develop and implement a

solution.” See ECF Dkt. No. 201 at 38. VDOC persists in using the same “arbitrary”—according

to Dr. Scharff—80% threshold for determining compliance and, in a manner strikingly similar to

that decried by the Court in 2014, “failed to act on the monitors’ concrete findings of deficient

care at FCCW.” See Ex. 1, Scharff October 2017 Report at 18; ECF Dkt. No. 201 at 43-44.

Indeed, the contract monitor at FCCW testified that she was not responsible for evaluating

corrective action plans prepared by Armor to respond to the areas of non-compliance she


12

identified and had not seen any corrective actions plans developed as a result of the areas for

improvement she identified in her annual report. D. Whitehead Dep., 103:15-21; 130:14-131:11.

Similarly, Mark Amonette, the highest-ranking physician within VDOC, testified at his

deposition that VDOC relies on the contractor to perform its own self-critical analysis of

unexpected deaths. Ex. 25, VDOC 30(b)(6) Dep. of M. Amonette, 51:10-52:21.

Not only did VDOC defer to the contractor to fashion its own self-improvement plans,

but VDOC also failed to effectively deploy its one tool, short of termination, for holding a

contractor accountable to provide adequate care. See S. Herrick 30(b)(6) Dep., 131:19-21.

VDOC uses liquidated damages as a way to financially motivate the contractor to come into

compliance. Id. at 23:6-8. Yet Armor paid no liquidated damages for non-compliance with

operations audits conducted by the VDOC Contract Monitor at FCCW for any months between

January 2017 and November 2017, inclusive, Ex. 10, RFA Responses, No. 15, despite persistent

non-compliance according to Ms. Whitehead’s audits. See, e.g., Ex. 23, Contract Monitor

Manager Monthly Reports for six months in 2017.7 In fact, VDOC levied only $20,000 from

January 2016 to April 2018 in liquidated damages for Armor’s failure to comply with the

contract and terms of the Settlement Agreement. S. Herrick 30(b)(6) Dep., 139:23-140:8. This

total represents less than one-tenth of one percent of the nearly $25 million paid to Armor by

VDOC over approximately the same period. See Ex. 26, Ledger at Bates No. RFP300006456.

This failure to hold Armor accountable through the levying of liquidated damages was

not just due to inattention; it was by design. In 2014, when VDOC released its Request for

Proposals, it proposed a rubric for imposing liquidated damages that would respond to specific

7 Plaintiffs’ counsel have been unable to locate the Contract Monitor Manager Monthly Reports for the missing months in 2017 within the VDOC production.


13

areas of non-compliance with immediate monetary sanctions. But when vendors, including

Armor, complained that the provisions were too punitive, VDOC backed down. See Ex. 4,

F. Schilling 30(b)(6) Dep., 29:1-30:15; Ex. 27, Responses to Vendors’ Questions at Bates No.

RFP300000462. The contract signed in 2015—well after the Court’s opinion on summary

judgment criticizing the lack of penalties for deficient performance—lowers the amount of the

penalties and changes the liquidated damages provisions in several other significant ways, all

designed to make the penalties both less likely to be imposed, and less likely to be registered as

an incentive by the contractor to modify its behavior when they are imposed. Ex. 28, Cookie

Scott 30(b)(6) Dep., 100:5-101:22; Ex. 4, F. Schilling 30(b)(6) Dep., 29:7-30:5. VDOC now

admits that the liquidated damages provisions, as applied for most of the contracting period, were

not reasonably calculated to hold the contractor accountable for the clinically most important

items. See Ex. 8, S. Herrick 30(b)(6) Dep., 38:23-39:2.

D. Recent Changes At FCCW Are Untested, Unreliable And, In All Probability, Unsustainable

It was not until after Plaintiffs initiated contempt proceedings with this Court—over

eighteen months after settlement—that VDOC gave serious thought to what meaningful change

at FCCW required. Plaintiffs filed their Show Cause Motion in early September 2017. Near the

end of that month, VDOC acknowledged that Armor was not meeting its performance or staffing

goals, S. Herrick 30(b)(6) Dep., 80:21-80:24, and initiated a request for proposals from Armor

and another contractor detailing how either would ensure VDOC’s compliance with the terms of

the Settlement Agreement. Ex. 29, S. Herrick 30(b)(6) Dep., Ex. 10. The request specifically

sought details regarding the contractors’ plans for a program that would meet the settlement’s

mandates. Id. Armor submitted its responsive proposal in late November 2017, which VDOC


14

later rejected because it contained “no new creative” ideas to fix problems at FCCW. Ex. 30, S.

Herrick 30(b)(6) Dep., Ex. 12 (Bates No. RFP140000074).

Instead, belatedly concluding that “Fluvanna has reached a critical point in which the

Commonwealth will be held responsible for the lack of success of Armor,” and that VDOC

“must take action before [it was] seen as complacent,” VDOC created a plan to transition

healthcare services at FCCW from Armor to State control, beginning on March 1, 2018. Ex. 30,

S. Herrick 30(b)(6) Dep., Ex. 12. Notably, while the takeover plan called for VDOC to place its

staff in key medical leadership positions at FCCW, Armor would still be responsible for

providing the on-the-ground healthcare staff for at least six months. Id. The sequencing of these

events demonstrates that VDOC would not have acted to place FCCW under its direct medical

care absent significant pressure from Plaintiffs, despite knowing of Armor’s inadequacy no later

than 2016.

Now, as VDOC scrambles to make reforms at FCCW as the contempt hearing looms, the

current prognosis for the state of medical care is at best guarded. For nearly two years VDOC

showed an unreasonable stubbornness about taking decisive steps to bring itself into compliance

with the settlement—particularly in the face of known violations of that agreement with Armor

running medical care at FCCW. Moreover, the entrenched systemic problems related to medical

care at FCCW are not ones that can be assumed remedied via quick fixes. For instance, after his

February 2018 visit, the Compliance Monitor downgraded VDOC’s performance in several

areas, including intake, health assessment, sick call, and chronic care, as compared to how those

systems were performing in August 2017. Ex. 6, Greifinger Report, ¶ 15.

By its own admission VDOC’s Continuous Quality Improvement (CQI) program at

FCCW through July 2017 was essentially non-existent. Ex. 24, FCCW Annual Report July


15

2016-July 2017 at 46. VDOC only hired a Quality Improvement nurse to work at FCCW after

June 2017, Ex. 31, J. Dillman Dep., February 15, 2018, 22:21-24, and then only hired a Quality

Improvement specialist to supervise QI at the Facility in February or March 2018. Id., 26:8-23.8

To the extent that VDOC convened CQI meetings at FCCW prior to that point, their reform

attempts were doomed to fail because they had not put in place the personnel necessary to ensure

lasting, successful improvements. And the current calendar for its nascent CQI program does not

include studies of all areas in which it has been deemed non-compliant over the last year by the

Compliance Monitor. See Ex. 32, Tentative CQI Study Calendar for FCCW 2018 (Bates No.

RFP40000749).

In short, VDOC’s current changes are, at this point, nothing more than untested half-

measures, especially where still being implemented by Armor staff. Ex. 6, Greifinger Report,

¶ 14. Given that it took immense pressure from Plaintiffs over the course of two years to get

VDOC to take these small steps toward being proactive, Plaintiffs have no guarantees that

VDOC will continue to invest in sustainable reforms to healthcare services at FCCW,

particularly in light of the pressure VDOC is under from state lawmakers to spend less. Ex. 22,

S. Herrick Dep., Feb. 16, 2018, 33:12-13.

E. Systemic Shortcomings In The Provision Of Medical Care At FCCW Continue To Jeopardize Women’s Lives

The entire compliance period has been rife with egregious examples of systemic failures

in care leading to life-threatening—and life-ending—health conditions for many women. The

persistent system failures identified by Dr. Scharff, VDOC’s own contract monitor, the authors

of VDOC’s annual report, FCCW’s interim Medical Director, and, most recently, Plaintiffs’

8 The FCCW QI nurse recently resigned. Thursday meeting. Ex. 48 (RFP900003025, RFP900003053).


16

experts, display a remarkable degree of consistency. Ex. 6, Greifinger Report, ¶¶ 46-47. No

doubt the systemic failures described above explain why Dr. Scharff has never rated the health

care provided at FCCW as fully compliant with the Settlement Agreement in more than seven of

the performance indicators at any given time. Ex. 10, RFA Responses, No. 7.

As painstakingly documented in Plaintiffs’ Show Cause Motion and accompanying

exhibits, women at FCCW experience these failures—and their consequences—at every step of

the health care process. Until very recently, FCCW did not track the date of submission of a sick

call request (i.e., request to see a medical provider), making it impossible to know whether

women were seen timely after their request. Ex. 13, Scharff March 2018 Report at 11. Once the

patient is seen at sick call, she faces a significant chance that her examination will be “cursory”

and her diagnosis “inadequate.” Id. at 10-11 (finding 10 of 52 random sick call examinations

inadequate).

This was certainly the case for Kathleen Ganiere, who requested a sick call after going

off her aspirin blood thinner on September 5, 2017 because of side effects suggesting an aspirin

allergy. After waiting six days, Ms. Ganiere was seen by Dr. Kamal, who cynically refused to

describe a new blood thinner, citing Ms. Ganiere’s “non-compliance” with the aspirin. Dr.

Kamal did order an ultrasound, but – despite the ultrasound’s result (positive for a deep vein

thrombosis) and acknowledgment of that result by FCCW’s acting medical director – Ms.

Ganiere received no follow-up care for another week. Ex. 6, Greifinger Report, ¶ 38.

Even assuming the patient is adequately diagnosed, she then stares down the barrel of

FCCW’s systemically deficient delivery of treatment. For example, Melissa Atkins, a patient

with an open ulcer on her leg, suffered throughout late 2017 and early 2018 from FCCW’s

failure to provide her with the correct wound ointment, and from individual nurses’ ineptitude


17

and callousness in changing her wound dressings. After reviewing her records, Dr. Greifinger

concluded that Ms. Atkins “did not get the appropriate dressing in a timely manner,” and that

“the wound care provided to [her] was highly deficient and uncaring, [putting] her at serious risk

of harm from infection.” Ex. 6, Greifinger Report, ¶ 43. Similarly, after finally receiving a

follow-up appointment for her positive ultrasound, Kathleen Ganiere waited yet another week to

be started on a new blood thinner. To compound the already-present risk of harm to Ms. Ganiere

from a three-week lack of medication, FCCW then failed to provide her at least 24 prescribed

doses of her blood thinner between October and December 2017. Ex. 6, Greifinger Report, ¶ 38.

A patient experiencing deficient medical care has the option of turning to the prison’s

grievance system—but at FCCW, that system too has been deficient and likely to frustrate, rather

than facilitate, her access to care. For example, in November 2017, a patient with a history of

brain surgery wrote an emergency grievance describing confusion, disorientation, and tingling.

FCCW responded that the patient’s condition was not an emergency, although, as noted by Dr.

Greifinger in his report, these conditions might well have signaled a medical emergency Ex. 6,

Greifinger Report, ¶ 42.

FCCW deems a shockingly small number of medical grievances to be “founded.” See,

e.g., Ex. 33, Scharff June 2017 Report at 13 (showing that in January through March of 2017,

FCCW deemed 0 or 1 grievance to be founded out of the 86-106 received each month). Dr.

Scharff’s audits repeatedly found the grievance process to be “focus[ed] on legalistic protection

of DOC,” to the detriment of patients. See, e.g., Ex 33, Scharff June 2017 Report at 12; see also

Ex. 17, Scharff January 2018 Report at 17 (VDOC rejection of grievance describing “spots on

face due to meds; blood in stool; lumps in breast” was inadequate). And, even on the rare

occasions when FCCW does acknowledge that a patient’s grievance is founded, she may find


18

that decision arbitrarily overturned by central VDOC leadership. For example, Kathleen

Ganiere, who suffered from FCCW’s repeated failure to provide her with appropriate doses of

her daily blood thinner, submitted a Regular Grievance that was deemed founded by FCCW.

Subsequently, central VDOC leadership inexplicably overturned that finding, despite the FCCW

Acting Medical Director’s explicit acknowledgment that the medication in question had in fact

been “missed or delayed.” Ex. 6, Greifinger Report, ¶ 38.

For some women at FCCW, the systemic failures in care extend to the circumstances of

their deaths. The unexpected death of Arlene Duke while on dialysis at FCCW in 2016 led to a

corrective action plan for improving communication for patients on dialysis. Ex. 11, D.

Whitehead Dep., 105:7-18. But Ms. Duke’s death was not the first problem FCCW had with

communication failures during dialysis—or the last. In June of 2016, the contract monitor

complained to the warden that the number of times a patient missed dialysis was poorly

documented and lamented, “[T]his could have been a negative outcome and we are requesting

intervention and documentation from you and your staff.” Ex. 34, Email from Catherine Thomas

to Tammy Brown, et. al (Bates No. RFP3600017430). Three months later, Ms. Duke died after

poor documentation of missed sessions. Ex. 35, Email from Catherine Thomas to Gale Gargiulo,

et. al (Bates No. RFP3600017435). Two years later in March 2018, a third patient, June Jones,

was rushed to the hospital with congestive heart failure after FCCW staff failed to follow-up

after a missed dialysis session. Ex. 36, Rebuttal Report of Dr. Robert B. Greifinger, May 28,

2018, ¶¶.

The deaths of Carolyn Liberato and Deanna Niece in July of 2017 drive home the terrible

consequences flowing from FCCW’s decision to employ LPNs—who receive minimal training

and are not equipped to accurately assess emergency conditions—as the “gatekeepers” to


19

medical care at the prison. Ms. Liberato’s building nurse failed to recognize the seriousness of

Ms. Liberato’s repeated high blood pressures, and the clinic medical staff failed to take her

reports of chest pain and breathing problems seriously. Despite Ms. Niece’s repeated complaints

of shortness of breath and difficulty walking, she was never referred to the clinic for evaluation

by a more qualified medical provider. Ex. 37, Armor’s Mortality Reviews Liberato, Niece, and

Johnson at Niece p. 5. Instead, she was told to drink water. Id. at 3.

Ms. Liberato’s and Ms. Niece’s deaths also demonstrate the total inadequacy of FCCW’s

emergency supply system. As both of these women tragically found, FCCW—a prison

specifically designed for inmates with serious health problems—did not have easily accessible

supplies of basic emergency equipment, like oxygen and stretchers, in the housing units.

Marie Johnson died just weeks after Ms. Niece. She suffered unnecessarily because of

FCCW staff’s inability or unwillingness to address her obvious health needs. The indifference

with which prison staff treat these ailing prisoners is apparent from the Unit Manager’s and

Assistant Warden’s failures to respond to other prisoners’ pleas for help on Ms. Johnson’s

behalf. See, e.g., ECF Dkt. No. 293, Ex. 2. The lack of experienced, capable medical staff at

FCCW is also apparent by the complete absence of any kind of response to her repeated,

documented high pulse rates and dramatic weight loss. In a review of her death, Armor’s acting

medical director acknowledged the problems in the weeks leading up to her care: “The signs and

symptoms were there and we missed an opportunity to make the diagnosis.” Ex. 37, Armor’s

Mortality Reviews Liberato, Niece, and Johnson at Johnson p. 9.

Dr. Greifinger’s review of the medical records of these three patients revealed

“substantial breaches in the standard of clinical care.” Ex. 6, Greifinger Report, ¶¶ 31-34. He

noted that Armor’s own mortality reviews “reveal persistent and systemic deficiencies in medical


20

and nursing care including inadequate availability of emergency equipment; poor documentation;

practice of nursing beyond the scope of nurses' licenses; and inadequate evaluation of patients

with acute serious medical needs.” Id., ¶ 34. According to VDOC’s own incident report

describing a recent death, that of Donna Reed on April 16, 2018, FCCW still did not have a

backboard available in Building 2, which is where the sickest patients live at FCCW, Ex. 38,

Donna Reed Incident Reports—despite identifying this as a problem associated with the deaths

of Ms. Liberato and Ms. Niece, and the Compliance Monitor’s admonitions to correct this

problem. See Ex. 39, S. Herrick Dep., May 18, 2018, 18:20-19:13.

These examples illustrate the harms associated with recent and ongoing inadequate

staffing, likely harm from serious interruptions in life-sustaining medication, wholly inadequate

responsiveness to legitimate grievances, inattention to patients with disabilities, and delays in

access to both primary physician care and specialty care. All such examples indicate that FCCW

continues to fall far below the standards of correctional health care. Ex. 6, Greifinger Report,

¶ 67.

STANDARD OF REVIEW

In a Status Conference requested by Plaintiffs’ counsel and conducted by telephone on

January 29, 2018, the Court advised the parties that it will determine the threshold question of

whether an Order to Show Cause should issue and, if so, then proceed to the merits of the

Plaintiffs’ contention that the VDOC should be held liable for civil contempt on the basis of the

evidence presented in the hearing commencing June 11.

The Court’s jurisdiction to address and adjudicate the Plaintiffs’ Motion is based upon

the Consent Order (see ECF Dkt. No. 262 at 2, ¶ 3), the express provisions of the Settlement

Agreement concerning enforcement of its terms (ECF Dkt. No. 221-1, Sec. V.2. at 23), and “the

long recognized, inherent jurisdiction of the federal courts to protect and enforce their orders and


21

judgments.” Colonial Williamsburg Found. v. Kittinger Co., 792 F. Supp. 1397, 1405 (E.D. Va.

1992) (citing authorities), aff’d, 38 F.3d 133 (4th Cir. 1994); see generally, Thompson v. U.S.

Dep’t. of Hous. & Urban Dev., 404 F.3d 821, 822 (4th Cir. 2005)(“‘Federal courts are not

reduced to approving consent decrees and hoping for compliance. Once entered, a consent

decree may be enforced.’” (quoting Frew v. Hawkins, 540 U.S. 431, 440 (2004)).

“To establish civil contempt, each of the following elements must be shown by clear and

convincing evidence:

(1) The existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) that the decree was in the movant’s ‘favor’; (3) that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (or at least constructive knowledge) of such violations; and (4) that [the] movant suffered harm as a result.”

Ashcraft v. Conoco, Inc., 218 F.3d 288, 301 (4th Cir. 2000), citing Colonial Williamsburg

Found., 792 F. Supp. at 1405-06; accord United States v. Ali, 874 F.3d 825, 831 (4th Cir. 2017);

Buffalo Wings Factory, Inc. v. Mohd, 574 F. Supp. 2d 574, 577 (E.D. Va. 2008).

While the same four elements that determine the Court’s ultimate ruling on whether

contempt has been established also govern the threshold assessment of whether an order to show

cause should issue, this preliminary question focuses only on whether the allegations advanced

by the moving party, if presumed true, are of sufficient weight to meet the applicable “clear and

convincing” standard of proof. See, e.g., United States v. Ali, Case No. PWG-13-3398, 2016 WL

8628348, at *1 (D. Md. March 29, 2016)(show cause order issued where the Court “ruled that

the IRS had met its burden of establishing by clear and convincing evidence a prima facie

showing” that the required elements for a civil contempt finding were present); Cree, Inc. v.

Bain, Case No. 1:15-cv-547, 2015 WL 12911462, at *1-2. (M.D.N.C. July 20, 2015) (Court

reserved judgment on ultimate finding as to whether movant’s allegations were proven

sufficiently to establish contempt, but “conclude[d] that Cree has made the preliminary showing


22

required for the issuance of a show cause order”); see generally Wyatt ex. rel. Rawlins v. Sawyer,

80 F. Supp. 2d 1275, 1278 (M.D. Ala. 1999):

The defendants confuse what the plaintiffs must produce at trial (clear and convincing evidence) with what they must show for issuance of a show-cause order (adequate allegations). The Eleventh Circuit has made clear that, for issuance of a show-cause order, the plaintiff need make only detailed allegations which, if true, would support a finding of contempt.

Id. at 1278 (emphasis in original), citing Wyatt v. Rogers, 92 F.3d 1074, 1078 n.8 (11th Cir. 1996)

and Mercer v. Mitchell, 908 F.2d 763, 768 (11th Cir. 1990).

As shown below, the Plaintiffs satisfy the threshold requirements for the entry of an

Order to Show Cause and meet each of the applicable criteria necessary to support—by clear and

convincing evidence9—a finding of civil contempt against the VDOC.

ARGUMENT

I. PLAINTIFFS’ EVIDENTIARY SHOWING SATISFIES THE APPLICABLE STANDARDS FOR THE ISSUANCE OF AN ORDER TO SHOW CAUSE AND FOR A FINDING THAT THE VDOC IS IN CONTEMPT FOR VIOLATION OF THIS COURT’S CONSENT ORDER

A. Plaintiffs Have Satisfied The Threshold Standard For The Issuance Of An Order To Show Cause

As set forth above, the threshold stage of this Court’s determination of whether the

Plaintiffs’ Motion should be granted involves its assessment of whether their supporting

allegations, taken as true, would be sufficient in detail and weight to satisfy the applicable

standard of proof. Here, the Plaintiffs supported their Motion with specific, detailed allegations

identifying the parties’ Settlement Agreement, which this Court approved and entered as a

Consent Order of which the VDOC was plainly well aware. Acts and omissions on the part of

9 “To be clear and convincing, evidence must ‘place in the ultimate factfinder an abiding conviction that the truth of [the party’s] factual contentions [is] “highly probable.”’” Ali, 874 F.3d at 831 n.2, quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984).


23

the VDOC which breached the obligations it assumed and the standards to which it is subject in

providing medical care to class members residing at FCCW are also alleged with specificity, and

supported with the Compliance Monitor’s expressed findings and the sworn Declarations of 27

class members providing detailed examples of the substandard care each has experienced since

entry of the Consent Order and the resulting harm attributable thereto. See generally ECF Dkt.

No. 266 & Exs. 4-8, 10-54 thereto.

To the extent presumed to be true as the law requires, the Plaintiffs submit that the

allegations presented in support of their Motion would absolutely produce in the mind of this

Court “an abiding conviction” that the VDOC has repudiated the obligations it willingly assumed

under the parties’ Settlement Agreement to provide constitutionally-adequate medical care at

FCCW and is thus liable for a finding of civil contempt. See Ali, 874 F.3d at 831 n.2. Notably,

in its Opposition to the Show Cause Motion, the VDOC never argued otherwise.

Accordingly, the Court should readily conclude that the Plaintiffs’ Motion has satisfied

their threshold obligation to establish a prima facie case that the VDOC should be required to

show cause why it should not be held in contempt.

B. The VDOC Has Breached Its Obligations Under The Parties’ Settlement Agreement And Thus Violated The Consent Order

1. The First Two Elements Of The Four-Part Test For Contempt Are Clearly Met

As addressed above, in order to establish grounds for a finding of civil contempt, the

Court must initially conclude that a valid decree exists, and that such decree is, in substance,

favorable to the party seeking the contempt ruling. Ali, 874 F.3d at 831; Ashcraft, 218 F.3d at

301; Colonial Williamsburg Found., 792 F. Supp. at 1405-06. These two requirements are

clearly met, and the Plaintiffs do not understand the VDOC to contend otherwise.


24

In a Final Judgment Order entered February 5, 2016, this Court approved the parties’

Settlement Agreement, stated that “the Settlement Agreement is deemed implemented as of the

date of entry of this order,” and noted its retention of jurisdiction in order to ensure such

implementation and “preside over such further proceedings as may be necessary or appropriate

to enforce its terms and conditions.” ECF Dkt. No. 262 at 1-2. The Court’s unequivocal

command that the Settlement Agreement be implemented constitutes a valid and enforceable

decree, as to which there is no question of the VDOC’s actual knowledge.

It is likewise apparent and indisputable that this Court’s decree was favorable to the

Plaintiffs, as is clear from the Court’s Findings of Fact and Conclusions of Law supporting the

Final Judgment Order and the fact that the Order dictated the VDOC’s payment of Plaintiffs’

substantial attorneys’ fees and litigation costs in light of the Plaintiffs’ recognized status as

prevailing parties in the action. See Findings of Fact and Conclusions of Law at 35 (“[G]iven the

extent of the affirmative relief that must be undertaken and implemented by Defendants under

the provisions of the Settlement Agreement in order to raise the quality and quantity of medical

care at FCCW to a level satisfying Eighth Amendment standards, the Court has no difficulty

concluding that the compromised fee award is proportionate to the results obtained by [the

Plaintiffs] in this action[.]”)(ECF Dkt. No. 261); see also ECF Dkt. No. 262 at 2, ¶ 2.

In sum, clear and convincing evidence exists that the first two elements of the four-part

test for civil contempt are met.

2. The VDOC Has Violated The Consent Order’s Terms And Has Actual Knowledge Of Its Violations

The third element of the four-part analysis governing determinations with respect to civil

contempt demands a showing that “the alleged contemnor by its conduct violated the terms of


25

the decree, and had knowledge (or at least constructive knowledge) of such violations[.]” See Ali,

874 F.3d at 831.

Here, the VDOC’s obligations under the terms of the parties’ Settlement Agreement, as

implemented and enforceable under this Court’s Consent Order, are clearly and unambiguously

set forth in the Agreement itself:

[T]he [VDOC] shall be obligated to achieve and maintain compliance with the Operating Procedures, Guidelines and Standards governing the provision of medical care that are set forth [below] or incorporated by reference [herein]. [T]hese provisions…are intended to insure that prisoners incarcerated at FCCW receive adequate, appropriate and timely medical care to protect them from substantial existing, ongoing and/or imminent physical injury, illness, chronic pain and undue risk of worsening health or premature death.

ECF Dkt. No. 221-1, Sec. III.1. at 5. Unfortunately, the VDOC’s consistent failure to live up to

the duties mandated by the Consent Order to substantially improve the quality and quantity of

medical care afforded to the women residing at FCCW during the time period since the Consent

Order took effect is both apparent and well-documented in the findings and conclusions reported

by the Compliance Monitor, in the Plaintiffs’ April 20, 2017 Notice Letter, in the medical

grievances submitted by and medical records maintained for the Plaintiffs and, perhaps most

significantly, in the VDOC’s own internal written communications. As a result, neither VDOC’s

violations of the Consent Order nor its actual awareness of those violations are in doubt. A focus

on only two of the multiple sources of the VDOC’s awareness suffice to confirm this point.

a. The Compliance Monitor’s Findings And Conclusions

The Settlement Agreement expressly mandates that “[e]xcept to the extent otherwise

agreed upon by the Parties under a specific provision set forth herein, the [VDOC] shall

implement all provisions of the Settlement Agreement within 30 days of the Effective Date.” ECF

Dkt No. 221-1, Sec. VI.2. at 24 (emphasis added). It is particularly telling, in light of this


26

admonition, that upon the initial monitoring visit to FCCW by Dr. Scharff from March 7-10,

2016, one month after the February 5, 2016 “Effective Date,” he found almost no signs of

positive change in many aspects of the substandard medical care that had been targeted by

Plaintiffs in the lawsuit and that were intended to be promptly remedied under the Settlement

Agreement. See Ex. 40, (Scharff March 2016 Report at 2). Dr. Scharff’s audit of nurse sick call

“demonstrated it was of almost no value, serving most commonly to delay any meaningful

evaluation of patients’ problems.” Id. His chart audits indicated that consultations with and

patients’ off-site visits to specialists were delayed, and that the lag time between the ordering and

first administration of prescription mediations was “not acceptable.” In addition, he found that

FCCW’s responses to prisoners’ medical grievances “were almost all inadequate, were in fact

non-responses. …Only 8 [out of 53] were referred for services. Among those not referred were

3 with potentially serious disease which could deteriorate significantly in the 30-45 days after the

initial grievance before a new informal Complaint might be filed and read. This is clearly a

circumstance requiring revision.” Id. at 7 (emphasis in original).

Dr. Scharff’s second Report, issued in September 2016 on the basis of a July monitoring

visit, reflected more of the same. He found a problematic deficiency in nurse staff, exacerbated

by FCCW’s dependency upon insufficiently trained agency nurses. Ex. 9, Scharff September

2016 Report at 2-3. He also identified continuing concerns with medication administration,

observing that FCCW’s practice of failing to inform patients with respect to changes in

medication was “inconsistent with acceptable medical practice.” Id. at 5 (emphasis in original).

He again targeted FCCW’s wholly deficient process for responding to medical grievances, and

noted that “[u]nless the Warden and Senior Management are committed to supporting a

meaningful grievance process to find and address real problems, the terms of the Settlement


27

Agreement are unlikely to be satisfied.” Id. at 11 (emphasis in original omitted). Dr. Scharff

also noted the adverse psychological effects on prisoners of FCCW’s failure to monitor their

conditions if their referrals to outside specialists were delayed more than 30 days, as required by

the Settlement Agreement, especially if the outside referral was for the purposes of diagnosing or

excluding malignancies. Id. at 12. In sum, formally referring to the 23 “compliance indicators”

specifically identified in Appendix B of the Settlement Agreement for the first time, Dr. Scharff

found FCCW to be “compliant” with respect to only 4 of these indicators, some five months after

the Effective Date.

Dr. Scharff’s next monitoring visit to FCCW, conducted in October 2016, was the subject

of a Report issued in January 2017 in which he raised serious concerns regarding continuing

deficiencies in such areas as staffing, medication administration, chronic pain treatment, co-

payment policy administration, response to medical grievances, and outside specialist referrals.

With respect to the latter, he noted the barriers to timely off-site medical consultations attributed

to FCCW’s “inadequate supplies of vehicles or security personnel.” Ex. 20, Scharff January

2017 Report at 18. Reviewing the medical grievance system for the third consecutive visit, he

again criticized FCCW’s pattern of providing bureaucratic “non-responses” which “only

strengthen the impression that FCCW and [VDOC] would rather prevail on a technicality than

try to understand and resolve the patient’s problem.” Id. at 13. He criticized the continuing

absence of formal medical input from the grievance response process as “senseless and counter-

productive” and characterized the process overall as unsatisfactory. Id. More broadly, although

Dr. Scharff noted some improvements in the performance of Armor, the medical care contractor,

he found VDOC’s effort to meet its obligations under the Settlement Agreement significantly

lacking:


28

For its part, VA DOC has not addressed any of the most troublesome problems at FCCW: co-payment policy, an ADA policy, the grievance process, and dental backlog and utilization tracking. Whether this is institutional inertia or simply lack of concern is not clear to me. In either case, VA DOC’s level of performance and involvement is not adequate in the setting of so many problems and so much patient dissatisfaction, nor is it consistent with its obligations under the Settlement Agreement.

Id. at 20 (emphasis added). Dr. Scharff again found FCCW to be “compliant” with only 4 of the

23 performance indicators identified by the Settlement Agreement.

Dr. Scharff next visited FCCW from January 23-26, 2017, and set forth his analysis and

findings in a Report issued March 17, 2017. He reviewed the medical grievance response

process again, and he again concluded that “[t]he frequency of inadequate and/or unhelpful

responses…remains far too high.” Ex. 16, Scharff March 2017 Report at 7. Likewise with

respect to sick call, he found continuing delays in the referral of patients to providers and the

ordering of needed medications, concluding that sick call examinations were adequately

performed in only 51% of cases reviewed. Id. at 9. Dr. Scharff also noted and expressed his

concerns that more than six months after the departure of FCCW’s most recent full-time Medical

Director, no replacement had been hired. Id. at 4-5. Dr. Scharff found FCCW fully “compliant”

as to only 4 of 23 performance indicators for the third consecutive visit.

Dr. Scharff’s next Report, issued June 25, 2017, reported on a monitoring visit to FCCW

he conducted in April 2017. Notably, as compared with his March 2017 findings, Dr. Scharff

concluded that FCCW’s performance was wholly non-compliant with its obligations under the

Settlement Agreement with respect to six performance indicators, as opposed to three in the

previous Report. Included in the non-compliant category were critical indicators such as sick

call, the co-pay policy and, the medical grievance response process—all subjects of vigorous and

pointed prior criticisms. Regarding FCCW’s continuing practice of allowing Licensed Practical


29

Nurses (LPNs) to conduct sick call, Dr. Scharff, following both firsthand observations and a

further audit of additional charts, stated:

Both my direct observations and the chart audit support allegations in my patient correspondence and in many grievances that the process of nurse sick call serves little purpose. In most instances, it serves only to delay evaluation by a provider….Until [sick call is] provided primarily by personnel qualified by training and experience to evaluate patients and prescribe medications…[VDOC] must be considered non-compliant in this area.

Ex. 33, Scharff June 2017 Report at 5-6. On a similar note, Dr. Scharff yet again excoriated

FCCW’s steadfast failure to reform its medical grievance response process:

As I have previously stated, a functioning grievance system is critically important in correctional health care systems, with their inevitable complexities and barriers to care related to restrictions on patient movement and communication with caregivers and custodial imperatives. In such settings, the grievance system is a critical failsafe for discovering errors in practice and unattended emergent conditions. Returning 75-97% of grievances unread for seemingly arbitrary reasons communicates simply and clearly that the system just doesn’t care about the grievances. Clinically, this is shortsighted, dangerous and likely negligent. In terms of the Settlement Agreement, it is unacceptable.

Id. at 14 (emphasis added). Overall, for purposes of the June Report, the VDOC was graded by

Dr. Scharff as “compliant” with respect to 5 of the 23 performance indicators contemplated by

the Settlement Agreement.

Thereafter, Dr. Scharff’s next visit to monitor medical care at FCCW took place in

August 2017, as reflected in a Report dated October 9, 2017. In this first Report following the

filing of the Plaintiffs’ Show Cause Motion, Dr. Scharff focused principally upon FCCW’s

ongoing lack of a full-time Medical Director, noting, in pertinent part, as follows:

In the absence of a full-time medical director, palliative care and pain control programs are not progressing. Physical therapy staffing still appears inadequate to the clinical need. Most important, the patients continue to perceive the system as un-caring of them and clinical staff are accordingly stressed. Addressing this requires continuing improvement in processes and clinical care at FCCW [and] the full-time presence of a site


30

medical director to reform care, teach staff, initiate programs like hospice and pain control, and build trust with the patient population.

Ex. 1, Scharff October 2017 Report at 1-2. Later in the Report, Dr. Scharff observed that the

absence of a full-time medical director was “foremost” among the “important problems”

characterizing the VDOC’s deficient performance under the Settlement Agreement. Id. at 19.

Overall, he found FCCW to be “compliant” on 7 of the 23 performance indicators identified by

the Settlement Agreement—a high-water mark for the VDOC up to that time, 16 months after

entry of the Consent Order—and wholly “non-compliant” as to 3 indicators.

Dr. Scharff’s next Report, dated January 9, 2018, reflected the results of his November

2017 monitoring visit to FCCW. In summary, he stated, in pertinent part, that:

Deficiencies remain in [physical therapy] staffing and scheduling and, increasingly and most alarmingly, in nurse staffing. After almost 18 months, [VDOC] and Armor have not yet been able to place a full-time medical director at the site. [¶] It seems increasingly unlikely that services will improve in the near future to an acceptable level under [the Settlement] Agreement.

Ex. 17, Scharff January 2018 Report at 1. Elaborating upon these remarks later in the Report in

the context of describing his meetings with representatives of Armor, Dr. Scharff noted that

“[t]he continuing absence of a full-time medical director and the nursing shortages are simply not

acceptable,” and that “[i]n the absence of a medical director, there has been no progress with

training providers in pain control or with the development of a pain control program. This is an

important deficiency.” Id. at 10-11 (emphasis in original and omitted). In concluding, Dr.

Scharff reprised the substance and tone of his initial summary:

In general, the picture is mixed but seems less hopeful. There has been substantial progress in certain areas where more organization is evident. …

* * *


31

However, the continuing, worsening shortage of nursing staff and the failure to recruit a full-time on-site medical director seem to me to be fatal failures which have reached critical proportions. Staff morale deteriorates in the absence of adequate clinical leadership, and staffing shortages exacerbate discouragement among leadership. Turnover in nursing exceeds the ability to replace staff, and administrative turnover impedes effective leadership.

* * *

The Court should reconsider whether the Settlement Agreement can succeed in repairing the deficiencies it cites.

Id. at 22-23. He rated FCCW “compliant” with respect to 7 of the 23 performance indicators, but

fully “non-compliant” on 7 of the indicators, including staffing levels, sick call, co-pay policy,

infirmary conditions and operations, infectious disease control, care and release of terminally ill

prisoners and conduct and follow-up on mortality reviews.

Finally, in his last Report preceding the preparation and submission of this Brief, dated

March 13, 2018 and addressing a monitoring review conducted in February 2018, Dr. Scharff

reprised a familiar lament:

[T]he absence of full-time medical leadership and the instability of medical administrative leadership continues to frustrate all efforts at global improvement as it has for over 2 years. Without improvement in this critical area, sustainable improvement in health care at FCCW is not possible.

Ex. 13, Scharff March 2018 Report at 1. Elaborating further on this initial summary statement,

Dr. Scharff observed:

While improvements have occurred in many areas during the last 2 years, nurse staffing remains critically deficient, and nursing practices have deteriorated accordingly. There is still no site medical director nor, at this point, even a director of nursing, and RN supervisors continue to leave FCCW. In the absence of adequate staffing, I do not believe substantial further improvement is possible, much less sustainable. Unless staffing can be fully repaired, I do not expect [that] the terms of the Settlement Agreement can be met by [VDOC].


32

Id. at 6-7. He concluded that “[the absence of] stable clinical and administrative leadership—a

site medical director, director of nursing, nursing supervisors—and a failure of adequate staffing

of nurses over-balance all other efforts to improve services” at FCCW. Id. at 16. With respect to

the 23 performance indicators, Dr. Scharff rated FCCW as 6 “compliant” and 6 wholly “non-

compliant” for February 2018.

In sum, in eight Reports spanning monitoring visits encompassing the period March 2016

through February 2018, at no time has Dr. Scharff evaluated the VDOC as “compliant” with

even half of the 23 performance indicators established in the Settlement Agreement that VDOC

was ordered to implement. The deficiencies in the provision of care consistently (and, in many

instances, repeatedly) noted by Dr. Scharff and routinely brought to the VDOC’s attention as a

function of his Reports foreclose any contention on the part of the Defendant that it either: (i) did

not violate the provisions of the Settlement Agreement ab initio, or (ii) was not actually or

constructively aware of any such violations.

b. The VDOC’s Own Information And Documents

Despite the VDOC’s categorical rejection of the concerns raised in the Plaintiffs’ April

20, 2017 Notice Letter with respect to FCCW’s failure to honor the obligations it had assumed

under the Settlement Agreement, it is apparent that, internally, the VDOC clearly recognized that

significant problems with the provision of medical care provided at FCCW existed and were on-

going.

Even as this Court gave its formal approval to the parties’ Settlement Agreement and

entered the Consent Order in early February 2016, intensive discussions were underway at the

highest levels within VDOC concerning the deficient nature of the medical care provided at

FCCW by the medical contractor, Armor, and whether continuing to entrust this responsibility to

Armor going forward was a viable strategy. At an internal VDOC meeting held on February 10,


33

2016 to address the “Fluvanna Health Care Plan,” at which VDOC Deputy Director Cookie Scott

presided, Ms. Scott began the meeting by reporting on discussions she had had with Armor

officials the preceding day, at which time a clear message was delivered to the contractor

concerning its urgent need to make improvements in the care provided at FCCW. The February

10, 2016 meeting notes reflect in this regard as follows:

[Ms. Scott] stated the Department is committed to Armor being successful[;] however[,] if they cannot make it work, [VDOC has] a responsibility to provide adequate medical care. … Ms. Scott met with Chief of Corrections Operations (CCO), Dave Robinson and Director, Harold Clarke[,] wherein all agreed to continue the [Armor] contract through October 31, 2016. They are not willing to change the May 1st deadline for significant improvement as Armor needs to show urgency and positive changes. If they make changes, we will continuously monitor and the October 31st deadline may be eliminated. Ms. Scott shared with them things they needed to do (reviewed “Problem Areas Identified” with them).

• Informal Complaints • Pill Line • Sick Call • Medications not being received • Chronic Care • Not documenting at all/or properly; information not reaching

charts • Sapphire updated • Charts not being used to write orders • Filing up to date • Nurses don’t know policies • Equipment checks, oxygen equipment not being done (weekly,

daily, monthly) as required • Infirmary not being up to 80% • Audit files not being maintained.

Ex. 41 (RFP400000848). At a follow-up meeting of the same VDOC group held on February

23, 2016, at which time the state of medical care at FCCW was generally described as “sinking

fast” (Ex. 42 (RFP400000865)), comments and observations articulated by various participants

included the following:


34

• “Attorneys are coming in and offenders are sending letters out to attorneys. There appears to be no urgency by Armor and the numbers of deficiencies are increasing.” Id. at RFP400000867.

• “Nurses pass medications in all (6) buildings and sufficient supervision is not provided to ensure duties are being completed.” Id. at RFP400000868.

• “Staff treating offenders without the medical record.” Id. at RFP400000869.

• “Orders written in December by Prescriber are not yet approved.” Id.

• “No Health Service Authority (HSA) or Director of Nursing (DON); no leadership (no one knows if staff has called in).” Id. at RFP400000870.

• “No orientation for staff, no support, no idea what’s going on in the buildings.” Id.

• “When questioned what they are doing, the staff’s response was ‘I don’t know.’” Id.

Despite VDOC’s clear awareness of a host of serious problems associated with Armor’s

continuing service as the medical care provider at FCCW, and VDOC’s articulation of a concrete

plan to take over responsibility for the provision of medical care at FCCW from Armor absent

demonstrated improvement by May 1, 2016—see, e.g., Ex. 43 (RFP400000811)—the VDOC

ultimately determined to leave Armor in place in May 2016, for reasons articulated by the

VDOC only in the most vague terms, if at all.

Whatever the basis for VDOC’s reasoning to maintain Armor, it is apparent that deficient

performance in the provision of medical care at FCCW persisted in the months thereafter, and

that VDOC leadership remained fully apprised of the problems. Thus, for example, the VDOC’s

Contract Monitoring Manager’s Report to FCCW for November 2016 identified a variety of

measurements in regard to which FCCW’s performance fell below the VDOC’s 80% compliance

threshold for numerous consecutive audit periods. Armor’s poor performance prompted VDOC


35

Director of Health Services Herrick to comment: “These are three or more months in a row.

These need to be fixed.” Ex. 44 (RFP3600003546). Similarly, on February 13, 2017, Dr.

Herrick issued a Memorandum to Armor officials, entitled “Healthcare Concerns” and stating, in

pertinent part, as follows:

This is formal notification to advise you of some healthcare issues to be immediately addressed within your contract with [VDOC]. I would like the concerns investigated with corrective action plans (CAP) submitted by the close of business on February 28, 2017. Please see the below concerns:

* * *

7. Notify and allow participation in mortality reviews for cases of unexpected deaths.

8. A clear report of the number of ordered medications not given to offenders at Fluvanna. A plan to reduce this number by 50% in the next quarter.

9. A clear written process for reporting infectious diseases to our infectious disease nurse (per policy). We have received no infectious disease reports from Fluvanna[.]

10. Meet all deadlines for the medical grievances per policy at Fluvanna.

Ex. 45 (PL DOC 249).

The continuing problem of substandard medical care at FCCW and the VDOC’s

conscious awareness of that problem is perhaps illustrated no more clearly than by a letter

submitted by FCCW’s then-Warden, Jeffrey Dillman, to David Robinson, VDOC’s Chief of

Corrections Operations, and other VDOC officials, on June 29, 2017. A little more than one

month after VDOC dismissively advised the Plaintiffs, in response to their Notice Letter, that

“FCCW is not in breach of the settlement agreement with [regard to] any of the provisions you

cite” (ECF Dkt. No. 266, Exh. 9 at 10), Warden Dillman recounted a decidedly different

perception:


36

1. Settlement Agreement (signed February, 2016)—We spend a significant amount of time addressing this court mandate. From my experience so far, it appears it would have been prudent to get together a guiding team when the agreement was signed and add the resources needed to address all the components of the agreement. 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 the 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.

Ex. 46 (RFP400000585).

Mr. Dillman’s remarkably candid observations from the trenches at FCCW belied the

false bravado with which the VDOC responded to the Plaintiffs’ Notice Letter and perhaps make

it less surprising that even after the filing of Plaintiffs’ Show Cause Motion, the VDOC

continued to search for answers to the puzzle of how to fulfill the obligations it voluntarily

assumed to improve the medical care at FCCW when it entered into the Settlement Agreement

two years before. See ECF Dkt. No. 286, Ex. 3 (VDOC’s September 27, 2017 letters to

contractors Armor and Mediko, “seeking new proposals to address the challenges of providing

health care services at Fluvanna” and requesting the contractors’ “innovative ideas and

solutions” for how to comply with the Settlement Agreement).

As the foregoing examples readily establish, the VDOC’s own information and

documents constitute clear and convincing evidence that more than satisfies the third element of

the applicable four-part test for finding of civil contempt, even if the Compliance Monitor’s

findings and conclusions, standing alone, were somehow insufficient to do so.

3. The Plaintiff Class Has Suffered Resulting Harm

A substantial volume of evidence including both the Compliance Monitor’s Reports, and

the critical findings set forth therein, and the Declarations of some 36 adversely-affected class


37

members supported the Plaintiffs’ threshold showing, at the time their Show Cause Motion was

filed, that concrete, real-world harm has resulted from the failure of the VDOC to honor its

obligations under the Consent Order to significantly improve the quality and quantity of medical

care provided at FCCW. See generally ECF Dkt. No. 266 at 20-38 and record citations therein.

Although it cannot be disputed that the VDOC has sought to hurriedly implement a variety of

measures since the Show Cause Motion was filed—particularly in recent months with the

hearing date for the Motion drawing ever closer—to attempt to some of the shortcomings that

characterized FCCW’s poor performance over the first 18 months of the Settlement Agreement

compliance phase, the Plaintiffs believe it is clear that harm to prisoners attributable to

substandard medical care at FCCW is ongoing.

Notwithstanding the predictable inclination of the VDOC’s proffered experts to virtually

disregard the many illustrations of continuing deficient care described in the Plaintiffs’ Show

Cause Motion and supporting Declarations, Dr. Greifinger’s initial Report and the Statement of

Facts set forth above—see Part E at 15-20 referencing, inter alia, avoidable deaths that FCCW

failed to prevent--in their anxiety to hail a “new” FCCW free from the troubled medical care

problems of the past, it is readily apparent from incidents of recent vintage such as are illustrated

by Dr. Greifinger’s Rebuttal Report, Ex. 36, that, sadly, business as usual at FCCW persists.

Amanda Segura, a 33-year old woman with a blood-clotting disorder who did not arrive

at FCCW until early March 2018, was fortunate to survive FCCW’s blithe dismissal of her

emergency grievance concerning the facility’s failure to provide her with the life-sustaining

anticoagulant that she must take daily as “not meet[ing] the definition of an emergency.”

Greifinger Rebuttal Report, ¶ 19. As a result, Ms. Segura manifested symptoms of deep-vein

thrombosis the very next day, requiring that she be sent to UVA Medical Center for emergency


38

treatment. Id. ¶ 20. Subsequently, Ms. Segura was overdosed with blood-thinner medication

due to apparent errors in FCCW’s medication administration, as a result of which she had to

return to UVA for emergency surgery due to massive internal bleeding on March 22, 2018. Id.,

¶¶ 22, 23. In response to an informal complaint filed by Ms. Segura on April 17, 2018

concerning the mismanagement of her care, FCCW did not disclaim any of the errors recounted,

stating only that the facility is “working diligently to improve our process in the medical

department,” and thanking her for her input. Id., ¶ 25.

Andrea Nichols confronted a diagnosis of metastatic colon cancer in March 2018 after

more than three years during which she sought help in vain from FCCW for symptoms of blood

in her stool and severe abdominal cramping. Id., ¶ 28. Although Ms. Nichols was first identified

as in need of a colonoscopy as early as 2015, a series of scheduling mishaps and errors relating

to mismanaged preparation protocols delayed her diagnostic testing until March 2018. Id., ¶¶

29-36.

June Jones experienced potentially life-threatening acute respiratory failure due to

internal fluid overload requiring her emergency hospitalization in late March 2013 after a

regularly-scheduled dialysis that Ms. Jones requires to treat her renal failure was missed by

FCCW on March 21, 2018 “because of a snowstorm.” Id., ¶ 39. Dr. Greifinger concluded that

“Ms. Jones’ respiratory failure and hospitalization was a direct consequence of her missed

dialysis session and failure of FCCW to monitor her weight subsequent to the missed session.

Fluid overload caused by a missed dialysis session leads to acute respiratory failure and death,

absent immediate intervention.” Id., ¶ 40.

Alice Cairns, a 50-year old woman bedridden with advanced multiple sclerosis, has long-

standing epilepsy which is treated with phenytoin, a medication with a very narrow therapeutic


39

range—i.e., if blood levels are too low, she has seizures; if they are too high, she suffers toxicity.

Id., ¶ 41. Due to an ongoing series of errors in communication between FCCW and UVA and

medication administration by FCCW with respect to an effort to change Ms. Cairns to a different

epilepsy medication, Ms. Cairns has alternately had to be hospitalized at UVA repeatedly for

either toxicity or for blood levels of her medication that were too low. Id., ¶¶ 42-46.

As summarized by Dr. Greifinger:

The case of Amanda Segura demonstrates the ongoing failure of the grievance system, through its unresponsiveness and mean spirit. The cases of Amanda Segura, Andrea Nichols and June Jones expose continue discounting of patients’ signs and symptoms of serious medical needs. Medication discontinuity is exhibited with Amanda Segura. medication error is rife in the cases of Amanda Segura and Alice Cairns.

* * *

FCCW continues to fail to meet the requirements of the [Settlement Agreement]. Women are suffering serious risk of harm and actual harm. FCCW’s very recent attention to improving responsiveness and systems has yet to yield demonstrable and sustained improvement.

Id., ¶¶ 47, 49.

Based on this and similar evidence to be presented in the upcoming hearing, the Plaintiffs

will establish, to a “clear and convincing” degree, that they have been and continue to be harmed

by the VDOC’s breach of the Consent Order.

II. THE VDOC’S PROFFERED DEFENSES OF “GOOD FAITH” AND “SUBSTANTIAL COMPLIANCE” ARE INSUFFICIENT TO AVOID A FINDING OF LIABILITY FOR CIVIL CONTEMPT

As previewed in its Opposition to the Plaintiffs’ Show Cause Motion, Plaintiffs expect

the VDOC to seek to avoid a finding of liability for breaching its obligations under the

Settlement Agreement by arguing that it has made good-faith efforts to comply with the

requirements of the Agreement, even if those efforts have fallen short, and that the recent

measures it has adopted and implemented in order to enhance the level and quality of medical


40

care at FCCW should be deemed to constitute “substantial compliance” with the Settlement

Agreement. See generally ECF Dkt. No. 286 at 21 (citations omitted). Under controlling Fourth

Circuit authority, however, both of these defenses—which, to the extent cognizable, effectively

reduce to the same analysis—must necessarily be rejected in light of the facts here.

“The absence of willfulness does not relieve from civil contempt . . . Since the purpose is

remedial, it matters not with what intent the defendant did the prohibited act.” McComb v.

Jacksonville Paper Co., 336 U.S. 187, 191 (1949)(citations omitted). Following McComb’s

guidance, numerous courts have rejected the proposition that good faith, or the contemnor’s

absence of intent to violate a Court’s order, can, in and of itself, establish a defense to a finding

of civil contempt. See, e.g., McLean v. Cent. States, SE and SW Areas Pension Fund, 762 F.2d

1204, 1210 (4th Cir. 1985)(“good faith alone does not immunize a party from a civil contempt

sanction for non-compliance with a court order”); Victor Stanley, Inc. v. Creative Pipe, Inc.,

Case No. MJG-06-2662, 2016 WL 1597119, at *3 (D. Md. April 20, 2016); S.E.C. v. SBM Inv.

Certificates, Inc., Civ. Action No. DKC 06-0866, 2012 WL 706999, at *10 n. 21 (D. Md. March

2, 2012); In re Tucker, 526 B.R. 616, 621 (Bankr. W.D. Va. 2015); In re Cherry, 247 B.R. 176,

187 (Bankr. E.D. Va. 2000); cf. Schwartz v. Rent-A-Wreck of Am., 261 F. Supp. 3d 607, 616 &

n.8 (D. Md. 2017)(noting division of authority within the Fourth Circuit with respect to

cognizability of a “good faith” defense to civil contempt).

By contrast, other decisions by and within the Fourth Circuit have held that “good faith”

can serve as a defense to assertion of a claim of civil contempt, but only so long as the assertion

of the defense is combined with a showing by the alleged contemnor that “all reasonable efforts

to comply” with the court order at issue were undertaken. See U.S. v. Ali, 874 F.3d at 832;

Dunkin’ Donuts, Inc. v. Three Rivers Entm’t and Travel, 42 F. App’x 573, 575 (4th Cir. 2002);


41

U.S. v. Darwin Constr. Co., 873 F.2d 750, 754-55 (4th Cir. 1989); Consolidation Coal Co. v.

Local 1702, United Mineworkers of Am., 683 F.2d 827, 832 (4th Cir. 1982); Chesapeake Bank v.

Berger, Case No. 4:14cv66, 2014 WL 5500872, at *3 (E.D. Va. Oct. 30, 2014), app. dismissed,

629 F. App’x 501 (4th Cir. 2015). These same decisions recognize that the “all reasonable steps”

standard is essentially synonymous with a “substantial compliance” defense. See Darwin, 873

F.2d at 755 (“‘Substantial compliance is found where “all reasonable steps” have been taken to

ensure compliance[.]’” (Citation omitted.)); Schwartz, 261 F. Supp. 3d at 615 (“To benefit from

the substantial compliance defense, the violating party must show that it took all reasonable steps

to ensure compliance.” (Citation omitted)).

As in the Schwartz case, it is unnecessary in the instant case for this Court to make a

definitive determination whether a “good faith” defense should be permissible as a bar to a

finding of civil contempt, because even assuming that such a defense is viable, the VDOC has no

realistic hope whatsoever of proving that it undertook “all reasonable steps” available to it to

achieve compliance with the requirements of the Settlement Agreement. The facts categorically

foreclose any such show here. Only a few of the many examples presented by the record are

needed to make this point.

Form of the Contract. A critical feature of the contract between the VDOC and Armor

that was recognized and roundly criticized by the Court in 2014 was the capitated financing

scheme designed by VDOC, pursuant to which the contractor is allocated the full risk that health

care costs may exceed the per prisoner price dictated by the contract’s pricing schedule, such that

the contractor’s profit increases as the cost of the care it provides to the prisoners decreases. In

its ruling on the parties’ cross-motions for summary judgment, this Court cogently observed that

“a reasonable fact-finder could conclude that a reduced level of medical care was the virtually


42

inevitable result of the VDOC’s decision to set up the contract in this way.” ECF Dkt. No. 201

at 43 (emphasis added). Yet, the VDOC took no steps to alter this feature of the current contract

with Armor, effective November 1, 2015 (almost a full year after the Court’s summary judgment

ruling), which is set up exactly the same way. Ex. 4, F. Schilling 30(b)(6) Dep., 35:16-25.

Inadequate Funding Of And Staffing Under The Contract. The VDOC has now admitted

that the level of funding provided by the contract, at least for purposes of the provision of

adequate medical care at FCCW, was inadequate from the beginning. Ex. 8, S. Herrick 30(b)(6)

Dep., 54:23-55-2 (“There were several areas, physical therapy, the number of LPNs, number of

RNs and the requirements of the settlement agreement, all led us to believe that we did not fund

it well enough for Armor in particular at Fluvanna.”).

Similarly, the staffing plan laid out by VDOC in the 2015 contract, as regards FCCW,

was not reasonably calculated to allow for the provision of a constitutional level of care. Id.,

54:15 (“[W]e really didn’t staff it appropriately from the beginning….”); Ex. 4, F. Schilling

30(b)(6) Dep., 38:23-40:7 (no changes to staffing plan set forth in the contract in light of the

Settlement Agreement).

Failure to Cancel Contract With Armor in Spring 2016. Despite extensive, robust and

seemingly serious internal discussions concerning the significant shortcomings characterizing

Armor’s performance as the medical care contractor at FCCW in early 2016, including

formulation of a concrete plan to assume responsibility for the provision of medical care at

FCCW itself, VDOC unjustifiably decided to retain Armor in May 2016.

Failure to Expeditiously Address And Resolve Deficiencies Highlighted By The

Compliance Monitor’s Reports. As reviewed exhaustively in Argument Section I.B.2.a. above,

Dr. Scharff’s monitoring visits and resulting Reports highlighted numerous deficiencies in the


43

manner in which medical care was provided at FCCW that persisted for months, such as the

facility’s defective process for responding to medical grievances and its steadfast adherence to

having sick call conducted by underqualified LPNs. VDOC simply refused, or in any event

failed to undertake affirmative action to correct, these glaring problems despite the Compliance

Monitor’s repeated criticisms and findings of non-compliance.

Failure To Effectively Address The Leadership Void At FCCW. By the time Dr. Scharff

rendered his Report in March 2018, FCCW had been without a full-time, on-site Medical

Director “for over 18 months,” with drastically negative consequences for FCCW’s capacity to

raise the level of medical care at the facility to the standards contemplated by the Settlement

Agreement. Ex. 13, Scharff March 2018 Report at 16. But, when afforded the opportunity to

hire an “excellent candidate” in the Fall of 2017 whom VDOC purportedly wanted to hire and

who was seriously interested in the position, the State lost the opportunity by dogmatic insistence

on adherence to a protocol with respect to salary proposals that caused the candidate to walk

away from the proposed deal. See Ex. 22, S. Herrick Dep., Feb. 16, 2018, 124:8-127:5. By the

same token, Dr. Gable’s recently-announced decision to serve in the position of full-time, on-site

Medical Director until such time as he is replaced, after months of serving in a part-time

capacity, came about only as a result of Armor’s decision to make it worth his while

financially—something that presumptively could have happened, with VDOC’s prodding, much

sooner than it did. Ex. 39, S. Herrick Dep., May 18, 2018, 61:6-62:18.

As reflected by these few concrete examples selected from a far broader array with which

the record before the Court is replete, it is obvious that the VDOC cannot even remotely show

that it undertook “all reasonable steps” to comply with its obligations under the Consent Order,


44

thereby avoiding a contempt finding. As a result, its “good faith/substantial compliance”

defenses must be rejected as a matter of law.

The VDOC may also seek to argue that in order to prevail, the Plaintiffs must reestablish

grounds for a finding by this Court that, without regard to “technical” violations of the terms and

conditions of the Settlement Agreement, VDOC is currently “deliberately indifferent” to the

Plaintiffs’ serious medical needs in contravention of the Eighth Amendment. Any such

argument would be misguided.

In approving the Settlement Agreement pursuant to the strict requirements of the Prison

Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A), the Court expressly stated that

“[t]he Plaintiffs have presented ample evidence in their filings…enabling a fact-finder [i.e., the Court] to reasonably conclude that the VDOC Defendants are or have been deliberately indifferent to the serious medical needs of the Plaintiff class.” Dkt. no. 222, ¶ 4 at 2. Although the case did not proceed to trial and was never fully decided on the merits, the voluminous evidence supplied by the Plaintiffs over four years of litigation would have been sufficient to prove an actual violation of the Plaintiffs’ Eighth Amendment rights. Further, the various remedies in the Parties’ Settlement Agreement are directly linked to and designed to effectively address—and redress—the Eighth Amendment violations alleged in the Plaintiffs’ pleadings and reflected in their evidentiary submissions.

ECF Dkt. No. 261 at 30 (emphasis added).

Consistent with this analysis, the Settlement Agreement, and all its terms and conditions,

represent the VDOC’s considered assessment—made in consultation with the Plaintiffs, the

parties’ advisors and the Court—of what was and is required to remedy the Eighth Amendment

violations identified in this case, and to meet its constitutional obligations to deliver adequate

medical care to prisoners with serious medical needs. As a result, violation of the obligations

imposed by the Settlement Agreement amounts to a violation of the VDOC’s constitutional

duties as it has defined them, without any need for a de novo adjudication of “deliberate


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indifference.” See generally Coleman v. Brown, Case No. 2:90-cv-0520 KJM/DBP, Order at 4-5

(E.D. Cal. April 19, 2017),10 following Coleman v. Brown, 938 F. Sup. 2d 955, 988 (E.D. Cal.

2013) (rejecting, in the context of a show cause proceeding, defendant California Department of

Corrections’ argument that long-standing proceeding involving systemic failures to provide

prisoners with adequate mental health care should be dismissed based on argument that

Department was “no longer acting with deliberate indifference to the serious mental health needs

of the plaintiff class,” absent a finding by the Court that the Department was in compliance with

the court-ordered remedial measures previously established).

III. A MULTI-FACETED REMEDY FOR THE VDOC’S CONTEMPT IS WARRANTED AND APPROPRIATE

The courts are invested with broad discretion to “fashion a remedy [for civil contempt]

based on the nature of the harm and the probable effect of alternative sanctions.” Colonial

Williamsburg Found., 792 F. Supp. at 1407, quoting Connolly v. J.T. Ventures, 851 F.2d 930,

933 (7th Cir. 1988) (other citations omitted); see generally In re Gen. Motors Corp., 61 F.3d 256,

259 (4th Cir. 1995) (“The appropriate remedy for civil contempt is within the court’s broad

discretion.” (Citations omitted.)). Importantly, in the context here, “civil contempt is

conditional or contingent in nature, terminable if the contemnor purges [itself] of the contempt.”

Carbon Fuel Co. v. United Mine Workers of Am., 517 F.2d 1348, 1349 (4th Cir. 1975) (citation

omitted).

Here, in light of the duration of the time period during which the Plaintiffs have been

required to wait for the relief they believed would be forthcoming and the intractable,

intransigent nature of the VDOC’s default on the obligations it voluntarily pledged to meet in the

10 Copy submitted herewith as Ex. 47.


46

Settlement Agreement, the Plaintiffs believe and respectfully submit that a robust array of

remedies is required in order to compel compliance with the Consent Order this Court entered in

February 2016.

The remedies outlined below are informed by what the Plaintiffs have learned during the

last several months of discovery in this case. They reflect Plaintiffs’ view that the grave

problems described herein will not be effectively corrected without more specific standards for

the provision of health care; the deployment—as appropriate—of outside expertise; swifter and

more robust accountability for non-compliance; and a greater role for the Compliance Monitor

and the Court in enforcing the Settlement Agreement. Accordingly, the Plaintiffs seek an Order

from this Court consisting of the following elements:

1. That the VDOC be held in contempt.

2. Impose civil fines in the amount of $1 million (=amount of one month of Armor contract for FCCW and 1/10 of 1% of VDOC annual budget for secure correctional facilities) if the Defendants fail to make all reasonable efforts to hire and retain a new qualified full-time Medical Director at FCCW no later than October 1, 2018;

a. The Medical Director shall be a physician with a minimum of 10 years of experience in internal or family medicine, with a preference for candidates with backgrounds in community health care. He or she shall should also have training and/or experience in trauma-informed care.

b. The Defendants shall allow the Plaintiffs to designate one person to participate on the selection committee for the Medical Director. The Plaintiffs’ designee shall be able to veto any candidate that the Plaintiffs’ designee finds unqualified to serve as the clinical lead at FCCW. Plaintiffs’ designee can solicit and submit for consideration her own chosen applications for the position to be interviewed by the selection committee.

c. The Defendants shall use the following tools as incentives for hiring a qualified Medical Director for FCCW, including but not limited to:


47

i. providing the candidate full access to the FCCW facility and permitting them to interview and consult with medical and security staff, as well as patients; and

ii. providing the candidate an opportunity to meet with Plaintiffs’ counsel.

3. Impose civil fines in the amount of $1 million (=amount of one month of Armor contract for FCCW and 1/10 of 1% of VDOC annual budget for secure correctional facilities) if the Defendants fail to adopt in writing and implement health care standards developed by the parties pursuant to the collaborative process outlined below within 90 days of this Order;

a. The Defendants shall convene, within 15 calendar days of this Order, a collaborative meeting among the Plaintiffs and their selected health care experts and Defendants and their selected health care experts in order to develop, within 75 days of this Order, more specific standards for the provision of health care at FCCW on the topics below:

i. Staffing and leadership, both medical and security

ii. Access to health care, including but not limited to: intake screening and comprehensive health assessments; sick call

iii. Diagnosis and treatment including chronic care

iv. Access to and administration of medications, including waivers of formulary exclusions

v. Infirmary conditions and operations

vi. Medical emergency response and care

vii. Conducting mortality reviews and implementing prevention strategies

viii. Physical therapy

ix. Infectious disease control and infectious waste management

x. Utilization management, including referral to outside specialists and compliance with specialists’ recommendations


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xi. Supply and distribution of medical equipment and supplies

xii. Accommodations for offenders with disabilities

xiii. Care and release of terminally ill

xiv. Medical grievances management and responses

xv. Co-payments

xvi. Offenders access to medical diagnosis, treatment, and care information

xvii. Training of medical and correctional staff

xviii. Criteria for measuring performance

xix. Quality assurance and Continuous Quality Improvement

xx. Mental health treatment

xxi. Treatment plans for women with serious medical conditions, including, but not limited to, chronic or terminal illness, infectious or contagious diseases, and mental health illness

xxii. Discharge planning for women released to the community with medical or mental health treatment needs.

4. Defendants shall take all reasonable steps necessary to retain and ensure the success of a Medical Director for FCCW, including but not limited to:

a. dedicating adequate financial resources to enable the Medical Director and the medical staff to provide a constitutionally adequate level of health care;

b. providing all requested information to the Medical Director immediately but no later than five (5) business days from the date of the request, unless otherwise agreed by Defendants and the Medical Director;

c. securing and paying for any expert consultants or evaluators requested by the Medical Director;


49

d. modifying FCCW policies and procedures to conform with the Health Care Standards as negotiated by Plaintiffs, Defendants, and others, under section ____ above, to ensure that security procedures do not compromise the level of health care provided; and

e. taking all other necessary and reasonable steps to fully support the Medical Director.

5. In addition to the duties described in the Order of February 5, 2016, the Compliance Monitor shall:

a. conduct unannounced visits at least once per quarter, in addition to regularly scheduled visits.

b. provide quarterly reports to the Court, subject to prior review-and-comment opportunities by the Parties, regarding the nature and extent of Defendants’ compliance.

6. The Court will conduct quarterly hearings regarding the nature and extent of Defendants’ compliance with this Court’s orders, including the Order of Feb. 5, 2016, at which the Monitor may testify, and the Plaintiffs and Defendants may present evidence. Any quarterly hearing may be cancelled by the Court, or by mutual agreement of the Parties.

7. If the Court determines, after the hearing in the prior paragraph, that Defendants have not complied with the Orders above or with the Settlement Agreement, the Court may, in its discretion:

a. hold the Defendants in contempt and order any appropriate remedies;

b. appoint an expert witness pursuant to Rule 706 of the Federal Rules of Evidence to make recommendations regarding specific changes to health care operations that Defendants shall make in order to come into compliance;

c. order the Defendants to comply with the recommendations made by the Rule 706 expert;

d. appoint a special master to oversee healthcare operations at FCCW; and/or

e. order any other appropriate relief.

8. The Court has been advised that health care at FCCW will no longer be provided by Armor Correctional Health. If the


50

Defendants decide to include FCCW in any VDOC Request for Proposals for comprehensive health care, the Defendants shall ensure that:

a. any selected proposal maximizes the extent to which state resources are applied to medical care, rather than to financial gain for the provider;

b. the FCCW staffing plan shall provide sufficient medical staff, by position, to deliver health care in compliance with the Settlement Agreement as modified and approved by the Court;

c. Scope of work for FCCW health services described in the RFP shall include specific requirements provided for in the Settlement Agreement as modified by this Order;

d. The RFP for FCCW shall increase the weight of factors related to quality and decrease the relative weight of factors related to price;

e. The selection committee for an FCCW health services contract shall be composed of the VDOC Health Services Director or designee; a correctional health expert designated by the VDOC; Plaintiffs’ designee; a correctional health expert designated by the Plaintiffs; and the Compliance Monitor. The Plaintiffs’ designee shall be able to veto any health services vendor candidate that the Plaintiffs’ designee finds unqualified. Plaintiffs’ designee can solicit her own chosen applications for the health services vendor; and

f. The selection committee shall be required to review and evaluate indicators of quality outside the vendor’s bid, such as a review of press stories and lawsuits involving the vendor, interviews with relevant references not supplied by the vendor, and any patient outcome data that may be available from other sites where the vendor has provided services.

9. The Plaintiffs are prevailing parties for purposes of Section V.2 of the Settlement Agreement; and

10. All other appropriate relief.


CONCLUSION

For the foregoing reasons, as supplemented by the evidence and argument to be presented

by the Plaintiff s at the upcoming hearing, an Order to Show Cause should issue and the VDOC

should be held in contempt for its failure to fulfill its obligations under the February 5,2016

Consent Order.

DATED: May 29,2018

Mary C. Bauer, VSB No. 31388 ([email protected]) Brenda E. Castaneda, VSB No. 72809 ([email protected]) Angela Ciolfi, VSB No. 65337 ( [email protected]) Abigail Turner, VSB No. 74437 ([email protected]) Adeola Ogunkeyede (admitted pro hac vice) ([email protected]) Shannon M. Ellis, VSB No. 89145 ([email protected]) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 (434) 977-0553

Philip Fornaci (admitted pro hac vice) (phil [email protected]) Elliot Mincberg WASHINGTON LA WYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000

Respectfully submitted,

Theodore A. Howard (admitted pro hac vice) ([email protected]) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000

Kristi C. Kelly, VSB No. 72791 kkell [email protected] Andrew Guzzo, VSB No. 82170 [email protected] Casey S. Nash, VSB No. 84261 [email protected] KELLY & CRANDALL, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 (703) 424-7576

By:~~~~~~~~ Attorneys Jar Plainti'(fs

51


CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of May, 2018, I will electronically file the foregoing with the Clerk of the Court using the CM/ECF system, which will then send a notification of such filing (NEF) to all counsel of record.

T~
