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Snead v. CoreCivic of Tennessee, LLC

United States District Court, M.D. Tennessee, Nashville Division

June 27, 2018

WENDY SNEAD and EDWARD MOREDOCK, individually and on behalf of all others similarly situated, Plaintiffs,
v.
CORECIVIC OF TENNESSEE, LLC f/k/a CORRECTIONS CORPORATION OF AMERICA, Defendant.

          MEMORANDUM

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

         Before the court is the plaintiffs' Motion for Class Certification. (Doc. No. 19.) The motion has been fully briefed and is ripe for review. For the reasons set forth herein, the motion will be granted in part and denied in part.

         I. Factual and Procedural Background

         The original Class Action Complaint (Doc. No. 1) initiating this lawsuit was filed by plaintiff Wendy Snead on June 16, 2017. Named plaintiffs Wendy Snead and Edward Moredock filed the First Amended Class Action Complaint (“Amended Complaint”) (Doc. No. 15) on October 27, 2017. The Amended Complaint asserts claims against defendant CoreCivic of Tennessee, LLC, formerly known as Corrections Corporation of America (“CoreCivic”), under 42 U.S.C. § 1983, based on the defendant's alleged deliberate indifference to the serious medical needs of current and former inmates while they were incarcerated at the Metro-Davidson County Detention Facility (“MDCDF”) in Davidson County, Tennessee, a facility operated by CoreCivic, in violation of the inmates' rights under the Eighth and Fourteenth Amendments to the United States Constitution.

         The plaintiffs seek to certify three subclasses, defined in their Motion for Class Certification as follows:

The Scabies Class: All current and former inmates who had a skin rash consistent with a scabies infestation who were denied treatment, or whose delayed treatment by the Defendant caused the inmate's condition to worsen, since October 1, 2016.
The Denied Prescriptions Class: All current and former inmates who were prescribed medication that was not administered as prescribed, or whose prescribed plan of treatment was interrupted or delayed by the Defendant, since October 1, 2016.
The Denied Medical Attention Class: All current and former inmates who requested, but were denied medical attention or treatment since October 1, 2016.

(Doc. No. 19, at 1.)

         According to the allegations in the Amended Complaint, CoreCivic is a for-profit prison company that operates MDCDF, a 1, 300-bed facility that houses male and female pretrial detainees and convicted prisoners serving sentences. There is no distinction between the detainees' and prisoners' conditions of confinement. Both Snead and Moredock are former prisoners of MDCDF, having already served their sentences prior to filing this lawsuit.

         The Amended Complaint asserts that CoreCivic has repeatedly and intentionally failed and refused to provide healthcare to inmates, including by denying them access to doctors and necessary medication. The pleading contains numerous allegations regarding CoreCivic's specific failures, including that, despite a contractual obligation to respond to sick call requests within twenty-four hours, CoreCivic's medical staff typically takes two to four weeks to respond to a sick-call request by allowing an inmate to see a nurse. “Referrals to doctors take months.” (Doc. No. 15 ¶ 13(a).) Despite a contractual obligation to employ staff to oversee infection control, CoreCivic has not employed anyone in those positions for at least one and possibly four years, and it does not use any procedure for screening inmates for scabies or other parasitic infections during intake. And, despite a contractual obligation to do so, it does not procure or review the medical records of inmates transferred to the facility who have special health care needs. It routinely runs out of mental health medications and fails to refill prescriptions for weeks, which poses a serious risk to inmates due to the abrupt cessation of necessary medication. It falsifies medical charts to cover the failure to provide prescribed medication to inmates as prescribed and systemically and intentionally fails to provide necessary medical treatment and medication to inmates. It is chronically understaffed and retaliates against inmates for complaining about their lack of access to adequate care.

         The condition called scabies is caused by an infestation by a parasitic mite, Sarcoptes scabiei. The mites easily hop from one person to another by skin-to-skin contact but can also live from two to five days away from a host on clothing, bedding, carpets, and furniture. The mites burrow under the outer layer of a person's skin, ingesting tissue as they burrow. (Am. Compl. ¶ 19.) Female mites lay eggs at the end of the burrowed tunnels, and the larvae hatch in two to three days. The newly hatched larvae soon crawl away to excavate their own tunnels, crawling at a rate of up to an inch per minute. Any person who has direct skin contact with someone who has scabies, however brief, is at risk of an infestation. (Id.)

         The scabies mites cause a skin rash that is readily identifiable as a result of the “track-like burrows in the skin” (id. ¶ 21) and is accompanied by intense, nearly unbearable itching, especially at night. The itching may make sleep impossible, giving rise to a whole host of other problems, particularly for persons with preexisting mental health conditions. The associated scratching facilitates re-infestation and skin eruptions that then make it easier for the mites to transfer to a new host. It also typically results in scales, blisters, bleeding, open sores, and a resulting risk of secondary infections, such as life-threatening Staph infections. A scabies infestation can only effectively be treated with prescription medications, including often multiple rounds of ivermectin pills and permethrin cream applied to the entire body. (Id. ¶ 22.)

         The plaintiffs allege that CoreCivic knew that scabies outbreaks are common in crowded jail facilities and that implementation of an infection-control policy was necessary in such a setting, but it failed and refused to implement and follow an effective infection-control policy prior to, during, or after the scabies outbreak at the facility.

         A scabies infestation began spreading among the male inmate population of MDCDF in July 2016. Moredock was sent to MDCDF beginning in August 2016 to serve a sentence for a DUI conviction. He was placed in a living area for older inmates and those with physical and mental disabilities. His pod housed approximately 140 inmates in cramped quarters. Despite attempts to avoid contact with other inmates with an obvious rash, Moredock contracted scabies in October 2016, accompanied by intense and painful itching.

         Although Moredock did not receive a health screening or tuberculosis test upon entry, when he was appointed to a prison job as a “trustee” a few months after his arrival, he was required to have a health screening. He was screened for the first time ninety days after his arrival, at which time he complained about the rash that had spread over his body. He was falsely informed that he had “contact dermatitis” or a reaction to “something in the laundry.” (Doc. No. 15, ¶ 29.)

         The infestation spread to the female inmate population by October 2016. Meanwhile, male inmates continued to submit sick call requests for treatment, which were ignored. Some inmates were placed in solitary confinement solely in retaliation for filing grievances related to the lack of medical treatment for the condition.

         By November 2016, the scabies infestation at MDCDF was widespread. The defendant was allegedly aware that the rash symptoms exhibited by a large number of inmates were consistent with scabies but continued to falsely inform the inmates that they did not have scabies.

         Moredock's initial request for treatment was ignored, so he submitted a second sick-call request in November 2016, describing symptoms that were obviously consistent with scabies. Because the defendant refused to adequately address his medical needs, Moredock submitted a printed copy of the “WebMD” internet page discussing scabies to the defendant, which continued to ignore his complaints.

         Moredock began working as a trustee in December 2016, which meant that he was responsible for assisting with the maintenance and repairs at MDCDF. In the course of his work, he traveled among housing units (“pods”) for both male and female inmates and personally saw that inmates in every pod were suffering with a rash consistent with scabies and were openly complaining about it.

         Moredock filed another sick-call request on December 4, 2016, stating affirmatively that he had scabies. At that point, at least forty other inmates in his pod also had scabies. Many of these were disabled inmates who were particularly vulnerable to infestation and also not capable of voicing their own needs or seeking medical attention. CoreCivic refused to provide treatment for these inmates' scabies infestations.

         Following numerous complaints, the assistant warden came and spoke with the inmates, affirming that he would “get with medical” to address the situation, but he never did. (Am. Compl. ¶ 35.) Moredock and other inmates feared retaliation for requesting medical assistance related to their condition.

         By the end of December 2016, Moredock had been suffering from scabies for over three months and had not received treatment. Finally, he pointed out that he was doing maintenance work in the warden's office and risked spreading scabies to the warden. At that point, in January 2017, Moredock received treatment.

         In January 2017, an employee of the state of Tennessee tested the water at the facility. Despite no finding of contamination, the defendant continued to falsely claim that the inmates' rashes were caused by the water rather than by scabies. However, around the same time, the defendant finally admitted that some of the male prisoners had scabies. Some were provided oral medication but none were quarantined. The defendant refused to acknowledge obvious scabies symptoms in other inmates and retaliated against some for requesting treatment for scabies by placing them in solitary confinement. Inmates who spoke on the phone to outsiders complaining about scabies lost their phone privileges.

         The Amended Complaint mentions several specific inmates, by their initials, who suffered scabies and did not receive proper treatment. Even those inmates who did receive treatment were subject to re-infestation, because the defendant made no effort to quarantine affected inmates or to properly treat their clothing and bedding to insure that the mites were not spread to others.

         Putative class member Jennifer King was sent to MDCDF as a pretrial detainee in December 2016. After one month in “D Pod, ” she began exhibiting symptoms of scabies and was transferred to E Pod. By the end of March 2017, the majority of inmates housed in E Pod had developed a rash consistent with a scabies infestation.

         In February 2017, a pregnant female inmate was transferred to MDCDF. She specifically informed the staff that she had been diagnosed with scabies, but the defendant made no effort to obtain her medical records, follow up with her treatment, or quarantine her from the general population to insure that her scabies had cleared up prior to her transfer.

         On March 10, 2017, Moredock submitted another sick-call request, inquiring why he had not received the treatment prescribed for his scabies re-infestation, which had been ordered several days previously. A member of the medical staff wrote on his chart, “Ivermectin reordered. Had more but given last dose.” (Doc. No. 15 ¶ 52.) A few days later, someone crossed out that notation and wrote in, “Benadryl & refer to MD.” (Id.)

         In May 2017, Moredock was released from incarceration still suffering from scabies. He was required to seek treatment outside at his own expense. He was unable to return to work until it cleared up, in order to avoid infecting others, thus suffering lost wages.

         In April 2017, the defendant provided a few inmates with medication to treat scabies but denied medication to others. The selective treatment, lack of quarantine, and other ineffective measures facilitated the continued spread of scabies throughout the facility.

         On May 1, 2017, after the defendant's repeated failure to treat or quarantine those affected by the scabies infestation, approximately fifty female members of E Pod drafted a letter to the Metro Health Department, describing the spread of the rash and the defendant's failure to treat inmates suffering from it. The letter was confiscated by facility officials and the inmates were not allowed to send it.

         On May 8, 2017, forty-nine female inmates housed in “Echo Pod” drafted another letter to the Metro Health Department, requesting assistance with the infestation from which they were suffering and detailing the history of the problem and their unsuccessful attempts to have it addressed. Other inmates sent letters on their own, specifically referencing two pregnant inmates who were taken to Meharry Hospital for checkups, where they were diagnosed with scabies. The Amended Complaint does not specify whether this letter was confiscated, but a declaration attached to the pleading indicates that it was transmitted to the friend of an inmate, who then mailed it to the Health Department. (B. Blanchard Decl., Doc. No. 28-4 ¶ 19.)

         In May 2017, King was transferred from E Pod to A Pod, where plaintiff Snead was housed. When she was transferred, King was covered with a visible rash but had been falsely told by the defendant that her condition was not contagious. Up until that time, no one in A Pod had contracted symptoms of scabies. King had repeatedly requested medical services and filed numerous grievances related to the lack of medical care, all of which were ignored.

         When King arrived in A Pod, one of the inmates there who had received some medical training recognized that King had scabies. She informed the defendant of the problem but was ignored. King was placed in an eight-person cell, in close proximity with Snead and other inmates. The other inmates soon began developing their own rashes, and the defendant continued to take no action in the face of the inmates' mounting complaints. The inmates were threatened with disciplinary action and solitary confinement if they complained about their condition or mentioned the word “scabies.” If they complained to their families and others outside the prison, their phone privileges were revoked in retaliation.

         Snead developed a rash beginning just days after King's transfer. She requested sick call and was seen by a nurse, who told her to change the type of soap she was using. Snead requested sick call a second time but was ignored. Thereafter, she began filing grievances due to the defendant's refusal to provide her access to medical treatment. Being unable to sleep, she became physically ill, developing fever and chills, but was still refused medical treatment. From May 9, 2017 until her departure in June, Snead filed seven grievances, none of which was ever addressed by the defendant. Other inmates began filing daily grievances, all of which the defendant ignored.

         Assistant Warden Hayes visited E Pod on May 15, 2017. She indicated she had heard that the inmates were complaining about a rash and asked how many were having problems. Approximately 100 women raised their hands. The plaintiffs allege that Assistant Warden Hayes scoffed. One inmate protested loudly that the inmates were being “eaten alive” and that something needed to be done. That inmate was handcuffed on the spot and placed in solitary for two weeks. On the same day, the facility was placed on lockdown for forty-eight hours. On May 17, 2017, Snead was able to communicate with her family, and her family reported the situation to the Metro Health Department and requested that it intervene.

         Snead was transported to a dermatology clinic on May 19 after her family had made numerous complaints to the Health Department. She was diagnosed with scabies and prescribed a treatment regimen that included ivermectin tablets and two topical creams. In addition, the defendant was specifically informed that every inmate in Snead's pod required treatment. Upon her return to MDCDF, the defendant told her that her prescriptions would not be filled. She was sent to solitary confinement, where she was deprived of a shower for five days, denied clean bedding and clothes, and was not allowed to contact her family.

         Snead was released from custody a few weeks later. She immediately went to the ER to obtain medical treatment. She incurred hundreds of dollars in medical and other expenses in dealing with the scabies infestation upon her release.

         The plaintiffs allege that, in May and June 2017, the defendant falsified, or had inmates falsify, sick-call requests and grievance forms to remove reference to the term “scabies” or to indicate that the inmates had received treatment when they had not. The defendant's pharmacy nurse was absent for two weeks at the end of May and beginning of June 2017, during which time medications were not ordered or re-ordered. Throughout June 2017, the defendant continued to ignore sick-call requests from inmates requesting treatment for the rash caused by scabies and continued to threaten them if they mentioned “scabies.” In early July 2017, the defendant's Health Administrator falsely informed the inmates that no one at MDCDF had been diagnosed with scabies.

         Finally, on or around July 17, 2017, the Health Department visited the facility. Twelve inmates who had filed grievances about lack of medical treatment were placed in solitary before the Health Department's arrival and were unable to speak with Health Department representatives while they were there.

         The plaintiffs allege permanent scarring from their scabies infestation and that they are still recovering. Some putative class members have been unable to return to work after release due to the risk of spreading infection to others and have lost wages as a result.

         The plaintiffs allege that the defendant, despite actual knowledge of the infestation among the prison population and of the extremely contagious nature of the infestation, failed to take reasonable steps to mitigate the problem, to quarantine those affected to prevent the spread to others, or to effectively treat those affected. The spread of the contagion was reasonably foreseeable, and the defendant failed to take reasonable steps to prevent or mitigate it. They allege that, as a direct and proximate result of the defendant's actions and inactions, the plaintiffs and putative class members became infested and suffered the consequences of terrible itching, pain, sleeplessness, and, after their release, quarantine, loss of wages, the costs of medical treatment, and the costs of remediating scabies infestations within their own homes and among family members.

         Based on the factual allegations set forth in the Amended Complaint, the plaintiffs assert three causes of action under 42 U.S.C. § 1983: (1) a claim based on the defendant's deliberate indifference to the plaintiffs' and putative class members' serious medical needs, in violation of the Eighth and/or Fourteenth Amendment (depending upon the inmates' status as pretrial detainees or prisoners); (2) a claim based on the inmates' exposure to, and the defendant's failure to protect them from, a state-created danger, in violation of their rights under the Due Process Clause of the Fourteenth Amendment; (3) a deliberate indifference claim under the Eighth and/or Fourteenth Amendment, based on the defendant's failure to train medical staff to address inmates' obvious need to access adequate medical care and medication or to recognize outbreaks of contagious conditions including scabies, among other matters.

         In support of their bid to bring a class action, the plaintiffs assert that the defendant has acted or refused to act in a manner that applies generally to the class, such that the claims for damages and injunctive relief on behalf of a class as a whole are appropriate; that questions of law and fact are common to all class members; that the number of persons whose rights have been violated is too numerous to join in the action; that the putative class members are readily identifiable using records maintained by the defendant during its regular course of business; that the plaintiffs have been injured by the defendant's actions in the same way as the other members of the proposed class; and that the plaintiffs will fairly and adequately protect the interests of the class as a whole.

         For relief, the plaintiffs seek monetary, compensatory, and punitive damages, as well as equitable relief in the form of “a permanent injunction enjoining the Defendant, its agents, [and] employees . . . from continuing to violate the Eighth and Fourteenth Amendments of the U.S. Constitution and to immediately cease intimidating, threatening, and retaliating against inmates for demanding medical care for their serious medical needs and to immediately provide adequate oral and topical medication sufficient to fully treat all those diagnosed with scabies” and that the defendant be required to “provide a full medical staff adequate to meet the needs of those infested with scabies and capable of dispensing medication and monitoring their treatment until completion.” (Doc. No. 15 ¶¶ 156-57.)

         On September 25, 2017, this case was consolidated for all purposes with John Doe v. CoreCivic of Tennessee, LLC, No. 3:17-cv-00958, also pending in this court, in which the plaintiff purported to bring suit asserting claims on behalf of a putative class defined as inmates and former inmates at MDCDF who contracted scabies and were denied adequate medical attention by the defendant. John Doe, like Snead and Moredock, had already been released from incarceration by the time he filed his class action. A ...


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