Filed Date: Dec. 18, 2018
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COVID-19 Summary: The plaintiffs in this West Virginia jail conditions class-action case filed an emergency motion for relief on March 25, 2020, seeking an order to require the defendants to develop, disclose, and implement a plan to take appropriate actions to protect the plaintiff class from COVID-19. The court denied the motion because it found that the plaintiffs were unlikely to succeed on the merits of their claim.
On December 18, 2018, the plaintiff, a pretrial detainee at West Virginia's Western Regional Jail, filed a pro se complaint against the jail in the U.S. District Court for the Southern District of West Virginia. The plaintiff alleged that he had been exposed to unsanitary conditions in the jail, including a lack of clean clothes, filthy showers, and inmates with staph and other infections.
The case was assigned to Judge Robert C. Chambers. On April 25, 2019, two cases were consolidated with this case (Docket No. 3:18-1436 and 3:18-1533) because they involved common questions of law and fact. That same day, the plaintiffs filed the first amended class action complaint on behalf of all "inmates housed in jail facilities throughout West Virginia." Represented by Mountain State Justice, the plaintiffs sued under 42 U.S.C. § 1983 for violations of their Eighth and Fourteenth Amendment rights, and violations of the Americans with Disabilities Act ("ADA") (42 U.S.C. § 12132). The plaintiffs sought declaratory and injunctive relief against the unconstitutional conditions within the jail. Specifically, they alleged discrimination against those with disabilities, failure to promptly provide necessary medical and mental health treatment, and failure to provide sanitary living conditions.
The defendants moved to dismiss on September 23, 2019. The plaintiffs filed a second amended complaint on December 19, adding additional plaintiffs to the case. The plaintiffs also moved for class certification on February 3, proposing a class that consisted of "All persons who were at any time on or after December 18, 2018, or who will be, admitted to a jail in West Virginia with a discernable, treatable medical and/or mental health problem." The plaintiffs also sought to certify a subclass of incarcerated individuals that met "the definition of being a “qualified individual with a disability” under the ADA."
On March 25, 2020, the plaintiffs filed a motion for a preliminary injunction in light of COVID-19. They requested that the court order the defendants to create, implement, and disclose an appropriate evidence-based plan to help prevent a COVID-19 outbreak, to minimize the impact if an outbreak were to occur, and to contribute to broader efforts to "flatten the curve." They requested a plan that included: inmate and staff education, requiring staff who experience COVID-19 symptoms to stay home until tested (or for a mandatory 14 days), healthcare and custodial staffing plans to keep the facilities running safely as staff members stay at home, staffing plans for services provided by detainees and prisoners themselves as they get sick, screening, testing, treatment, and housing of plaintiffs, plans for additional precautions to prevent exposure of vulnerable populations, provision of hygiene and cleaning supplies to all inmates, housing plans for inmates exposed to the virus, enhanced plans for cleaning shared spaces, coordination with community hospitals, and the removal of charges for methods of communication and psychological support while visitation is eliminated. They additionally requested that the court order some of those held to be released so that jails could practice proper social distancing and permit the appropriate quarantine and treatments of individuals in custody who get COVID-19.
On April 1, Judge Chambers issued an order directing the defendants to provide a redacted copy of their COVID-19 response plan to the Court, and to plaintiff's counsel and their expert witness by 5 p.m. that day. Following this, the expert was required to respond by 5 p.m. on April 2. The defendants were to provide a response to the expert before April 3 at 3 p.m. The court scheduled a hearing for April 6, 2020.
On April 8, the court issued an opinion denying the plaintiffs' motion for a preliminary injunction because their claim was unlikely to succeed on the merits. The court stated that the defendants had been responsive to the COVID-19 pandemic and had produced a comprehensive plan to address the spread of the virus in the state jails and prisons. Furthermore, the court was unwilling to choose a fixed number to release as the plaintiffs had requested. Finally, the court said that because there were no reported cases of COVID-19 in West Virginia prisons, the timing of the motion was also a factor in the decision -- specifically, it was impossible to conclude that the defendants had acted with the required deliberate indifference that would lead to an Eighth Amendment violation. The court stated that as time progressed, if the defendants' current plan was unable to address the spread of COVID-19 in the prisons and jails effectively, the plaintiffs would have a greater likelihood of success on the merits. 2020 WL 1802935.
The ACLU of West Virginia moved to intervene on April 10, for the limited purpose of seeking to unseal court records. The ACLU argued that the response plans for correctional facilities in response to COVID-19 had significant implications for incarcerated people, their loved ones, and the employees of West Virginia's correctional facilities, and should not remain under seal. Intervention was granted on April 15.
On April 23, the court granted in part and denied in part the ACLU of West Virginia's Expedited Motion to Unseal Court Records. 2020 WL 1958632. The Court found that the defendants concerns that unsealing documents would risk anxiety and retaliation amongst the incarcerated population was not sufficient to overcome the First Amendment right of access. However, the Court declined to unseal and unredact the jail's COVID-19 plan, as the Court had not even asked for an unredacted version.
The plaintiffs agreed to a voluntary dismissal of their conditions-of-confinement claim on May 22.
In July, multiple defendants moved for summary judgment, but the court found that the defendants’ motions were moot on October 29, 2020 because the court had already dismissed those plaintiffs with prejudice for failing to prosecute their case. 2020 WL 6365451.
A few months later, on December 21, 2020, the court denied in part and granted in part the defendants’ motions for summary judgment. 508 F.Supp.3d 28 The court granted the defendants’ motions as to five plaintiffs’ ADA claims, finding that those plaintiffs had failed to state claims under the Act. However, the Court found that a sixth plaintiff had stated a claim under the ADA. In addition to this last surviving ADA claim, the plaintiffs' Eighth Amendment claims were allowed to proceed, as the Court found that the defendants’ inaction rose to the level of deliberate indifference to prisoners’ mental and medical health. Finally, the Court noted that the claims were not moot because the plaintiffs were litigating on behalf of a class, and that the plaintiffs had not failed to exhaust their administrative remedies because the jail’s grievance process were not sufficiently available to the incarcerated plaintiffs. The court dismissed the West Virginia Division of Corrections and Rehabilitation (WVDCR) from the case pursuant to the plaintiffs’ voluntary dismissal, leaving the case to proceed against the Division Commissioner.
On the same day in a separate decision, the court granted the plaintiffs’ motion for class certification as to the plaintiffs’ “Jail Class,” but reserved judgment on the plaintiffs’ "Disability Subclass" because only one of the plaintiff’s ADA claims remained. 338 F.R.D. 80. The Jail Class included all persons who were or would be admitted to a jail in West Virginia. The disability subclass included all persons who were or would be admitted to a jail in West Virginia and who were disabled within the meaning of the ADA. The court ordered the parties to file memoranda regarding the suitability of the disability subclass class for certification.
On January 5, 2021, the defendant filed a petition for permission to appeal the order granting class certification, but the petition was denied. A few days later, on January 11, the matter was stayed while the parties attended mediation. Mediation was unsuccessful, so the stay was lifted on April 28, and a trial scheduling order was entered on May 20.
Trial proceedings continued for several months. On July 8, 2021, the plaintiffs filed a notice of inspection to have an expert inspect the West Virginia jail facilities, and following a hearing, a proposed agreement for the inspections was entered on August 10. The inspections took place from September 27 through 29.
Following the inspections, the plaintiffs renewed their emergency motion for a preliminary injunction on October 12, 2021 based on the expert’s findings. The expert identified serious failures in detection and implementation strategies to manage the spread of COVID-19 in the facilities, and found deficiencies in the defendant’s other policies with respect to testing, quarantine, medical isolation, and treatment of the incarcerated population. The expert further stated that the lack of testing was masking the true extent of the outbreaks. The plaintiffs requested in their motion that the defendant be required to implement isolation protocols, quarantine protocols, appropriate testing, and treatment of COVID-19, and be required to present a comprehensive plan to the court as to how the procedures would be implemented.
The parties negotiated an agreement regarding the motion on November 3, and in light of the negotiations, the plaintiffs’ emergency motion was held in abeyance. The plaintiffs’ counsel drafted the proposed consent order, which included stipulations that the defendant would: comply with and keep up to date on the latest CDC guidelines, ensure sufficient availability of tests for routine testing, implement quarantine procedures for newly detained individuals and individuals who had close contact with those who tested positive for COVID, medical isolation policy for those who tested positive, preventive measures such as personal protective equipment and vaccines, treatment protocols, and finally, reporting and disclosure requirements.
The defendant's counsel failed to respond with any changes, and plaintiff’s counsel was informed on November 11 that the defendant had retained new counsel. The defendant’s new counsel informed the plaintiff that the defendant wasn’t willing to enter into any kind of agreement regarding the proposed order. A few days later, on November 15, 2021, the plaintiffs filed a motion to enforce the order, arguing that the parties had reached an agreement. The court denied the motion on December 10, stating that the parties had merely negotiated terms, and hadn’t reached a concrete, enforceable agreement. On December 21, the plaintiffs’ withdrew their renewed emergency motion. 2021 WL 5867412.
Litigation continued for several months, and on April 8, 2022, the defendant filed a motion to dismiss count 2 of the amended complaint, the remaining claim regarding violations of the ADA, for a lack of subject matter jurisdiction. The parties agreed to the dismissal on April 21.
On May 1, 2022, the defendant entered into a new contract to provide medical and mental health services in their facilities. The contract was based on concepts the parties had spoken about in their 2021 settlement discussions, so the defendant asked for summary judgment, arguing the plaintiffs’ claims were moot as a result of the new contract. This motion was still pending when, on May 24, the parties met for a settlement conference. The parties were able to reach an agreement, which included: implementation of the new medical services contract by the WVDCR, establishment of internal auditing and review of that contract, communication with the plaintiffs’ counsel for two years regarding the implementation and auditing of the contract, a payment to each names class representative, and a payment to plaintiffs’ counsel for attorney’s fees. The parties entered a notice of settlement on May 27, and jointly moved for preliminary approval of the settlement and a notice to the class on July 1. The court granted preliminary approval, and members of the plaintiffs’ class were given a period of time to comment on the fairness of the settlement prior to a fairness hearing, which was scheduled for September 27, 2022. On September 13, WVDCR’s commissioner Betsy Jividen stepped down, and was replaced by Brad Douglas. Following the September 27 fairness hearing, the court approved the settlement, and the case was placed on the court’s inactive docket for the two year communication period between the defendant and the plaintiffs’ counsel, which expires August 31, 2024.
Caitlin Kierum (4/17/2020)
Mary Novakovic (10/7/2020)
Becca Rogers (12/25/2020)
Tessa McEvoy (3/12/2021)
Simran Takhar (1/2/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/8427693/parties/baxley-v-jividen/
Aboulhosn, Omar J. (West Virginia)
Arceneaux, Webster J. III (West Virginia)
Beyrer, Chris (Maryland)
Casey, G. Nicholas (West Virginia)
Casto, Anna (West Virginia)
Aboulhosn, Omar J. (West Virginia)
Chambers, Robert Charles (West Virginia)
Torres, Analisa Nadine (New York)
See docket on RECAP: https://www.courtlistener.com/docket/8427693/baxley-v-jividen/
Last updated July 31, 2023, 3:06 a.m.
State / Territory: West Virginia
Filing Date: Dec. 18, 2018
Case Ongoing: Yes
Both current and future detainees and prisoners in the West Virginia Division of Corrections and Rehabilitation
Public Interest Lawyer: Yes
Filed Pro Se: Yes
Class Action Sought: Yes
Class Action Outcome: Granted
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Amount Defendant Pays: 600,000
Order Duration: 2022 - 2024
Content of Injunction:
Type of Facility: