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Duvall v. O'Malley

United States District Court, D. Maryland

June 28, 2016

JEROME DUVALL, et al., Plaintiffs,
MARTIN O’MALLEY, Governor of Maryland, et al., Defendants.



         This litigation is now in its fifth decade. Hopefully, the case is drawing to an end.

         The Court has before it “Plaintiffs’ Motion For Approval Of Settlement Agreement As Amended, ” filed on June 21, 2016 (ECF 571), supported by a memorandum (ECF 571-1) and exhibits, and as corrected on June 27, 2016 (ECF 572) (collectively, the “Motion”). These submissions pertain to a long-running class action initiated by detainees at the Baltimore City Detention Center (“BCDC”), [1] challenging conditions of confinement. The Settlement Agreement is docketed at ECF 541-2, and the modification to it, titled “First Amendment to Settlement Agreement” (“Amendment”), is docketed at ECF 572-2 and ECF 571-3 (redlined version).[2] An earlier, pre-Amendment “Motion For Final Approval of Settlement Agreement” is docketed at ECF 552, filed on March 24, 2016.

         The plaintiffs consist of “that class of persons . . . who are now or who will in the future be confined to the Baltimore City Detention Center.” ECF 423-2 at 4–5. The defendants “are the persons holding the following Maryland state offices: Governor, Secretary of [the Department of] Public Safety and Correctional Services, Commissioner of Pretrial Detention and Services, Commissioner of Corrections, and the Warden of the Detention Center.” Id. at 5 (hereinafter, the “Defendants”).[3]

         “BCDC” is defined in ¶ 3 of the Amendment to the Settlement Agreement. The Amendment was necessitated by the closure in September 2015 of the Men’s Detention Center, which was previously part of BCDC, and the anticipated closure in 2016 and/or 2017 of the Women’s Detention Center, the Annex, and the Wyatt Building. Therefore, the parties have amended the Agreement so as to extend the coverage of most of the provisions in the Settlement Agreement to pretrial detainees at the Baltimore Central Booking and Intake Center (“BCBIC”). As explained by plaintiffs’ counsel at the hearing on June 28, 2016, detainees at BCBIC will now be covered by the Agreement, with the exception of those provisions pertaining to the physical plant of BCDC set forth in § III(B) of the Agreement.

         The Motion includes an uncontested request for attorneys’ fees submitted by plaintiffs’ lawyers as part of the proposed Agreement. See ECF 541-1 at 24-33; ECF 541-2 at 19. The request for attorneys’ fees is supported, inter alia, by the Declaration of Elizabeth Alexander, Esquire, who became involved in the case in 2002, when she was Director of the American Civil Liberties Union Foundation (“ACLU”) National Prison Project (“NPP”). See ECF 541-4. It is also supported by the Declaration of David Fathi, Esquire, who has been the Director of the NPP since 2001. ECF 541-5. And, Debra Gardner, Legal Director of the Public Justice Center since 2000, has also provided a Declaration. ECF 541-6.

         In anticipation of filing the Motion, on December 23, 2015, the parties filed a “Consent Motion for Preliminary Approval of Settlement Agreement and Proposed Notice to the Class” (“Preliminary Motion, ” ECF 541), along with a legal memorandum (ECF 541-1) and several exhibits. By Order dated January 4, 2016 (ECF 545), I granted the Preliminary Motion and approved the proposed notice to the class.

         In regard to the Motion, the Court held a class action fairness hearing in open court on April 15, 2016. Because of issues that arose at the hearing, largely concerning the closure of the Men’s Detention Center and the impending closure of other buildings that are part of BCDC, the hearing was continued until June 28, 2016.

         I. Factual Background

         This case is a consolidation of two cases filed in the 1970’s: Collins v. Schoonfield, K-71-500 (D. Md.), filed in 1971, and Duvall v. Lee, K-76-1255 (D. Md.), filed in 1976. The protracted litigation has a tortured procedural history.

         The case was initially assigned to the late Judge Frank A. Kaufman. Thereafter, from 1993 until mid 2011, Judge J. Frederick Motz presided over the litigation. In July 2011, the case was reassigned to me. See ECF 419.

         At various stages of the litigation, the parties entered into consent decrees; consent orders were issued, along with court-approved settlement agreements resolving various aspects of the case; and the case was closed subject to reopening. The proceedings included a 1978 Consent Decree (ECF 423-1); a 1993 Revised Consolidated Consent Decree dated July 9, 1993 (sometimes referred to as the “1993 Decree” or the “Revised Consent Decree”) (ECF 423-2); administrative closure in 1998 (ECF 70); an Order to restore the case to the active docket in 2002 (ECF 84); a 2002 Consent Order (ECF 84; see also ECF 423-3); an Order in 2004 to restore the case to the active docket (ECF 196); a 2009 Partial Settlement Agreement (“PSA, ” ECF 374-1), approved by Order dated April 6, 2010 (ECF 394); and a 2012 Partial Settlement Agreement Amendment (“PSA Amendment, ” ECF 447-1), which was approved by Order dated May 9, 2012 (ECF 465). In general, these agreements, decrees, and orders provided for continuing monitoring by plaintiffs (and the Court) with respect to certain aspects of the operation of BCDC and the conditions of confinement at the facility.

         The early factual background of this litigation was summarized by Judge Kaufman in the 1993 Decree. The 1993 Decree is almost 30 pages in length. Judge Kaufman wrote, in part, ECF 423-2 at 1–4 (underlining in original, italics added for emphasis):

         I. PREAMBLE

A. History of Cases
This is a consolidation of two separate class action suits initiated by inmates involving the conditions of confinement at the Baltimore City Jail, now known as the Baltimore City Detention Center. The first suit, Collins v. Schoonfield, Civil No. 71-500-K, was filed in 1971 and related to the conditions of confinement in the Jail. On May 15, 1972, the Court issued an opinion, reported at 344 F.Supp. 257 (D. Md. 1972), finding that many of the conditions shown at trial involved violations of the inmates’ constitutionally protected rights. Interim Decree I was entered on July 27, 1972, setting forth specific standards of confinement with respect to various areas of Jail administration. The standards with respect to the delivery of medical services were covered in Interim Decree II entered on December 13, 1972.
The second suit, originally captioned Duvall v. Lee, Civil No. K-76-1255, was filed in 1976 and related to overcrowding and its effect on the conditions of confinement in the Jail. The Duvall case first resulted in a “Partial Agreement Among the Parties”, approved by the Court on November 23, 1977, which was a short term plan for the immediate reduction of the Jail’s population. Subsequently, the parties entered into Consent Agreement II, which was approved by the Court and adopted as its decree on July 13, 1978. [Consent Agreement II set forth various standards relating to inmate housing and services].
After the City moved for modifications, the provisions of the decrees in the two cases, with same changes, were combined into a single Consolidated Decree which was entered by the Court with the consent of the parties on April 24, 1981. In 1984, some new changes in the decree were made by consent. . . . Most importantly, these changes permitted limited double-celling in the Male Detention Center and set a separate capacity limit for each housing section in the Jail, including all sections not covered by the 1981 decree. In addition, a number of suits by individual inmates were consolidated with the class actions.
[Additional modifications were made over the next several years].
The parties agreed to a revised decree in 1988 which was intended as a replacement for the 1984 decree and was designed to reorganize and simplify the decree’s provisions and to bring all previous decrees and agreements together into one document.
B. State assumes control
On July 1, 1991, the State, pursuant to House Bill No. 1059, 1991 Laws of Md. Ch. 59, created the Division of Pre-Trial Detention and Services and assumed the control, regulation and administration of the Baltimore City Jail under the name The Baltimore City Detention Center. The revisions set forth in this 1993 Decree incorporate the modifications requested by the State in recognition of the State’s assumption from Baltimore City for the day to day operation and administration of the Baltimore City Detention Center. . . .

         The 1993 Decree lists as its purpose “to eliminate and to prevent overcrowding the Detention Center and to ensure that the inmates are not subjected to living conditions, the totality of which can reasonably be expected to violate the standards of human decency required by the Eighth Amendment or by any other provision of the Constitution of the United States.” Id. at 7. Judge Kaufman also stated, id. at 27:

[T]his Court is specifically not ruling that each of the provisions of this Decree is per se required by the Constitution of the United States. Thus, while many of the provisions of this Decree are identical with, or modify provisions included in previous decrees appropriately entered by this Court in the Collins and Duvall cases, it is noted that the Plaintiffs may not be entitled, as a matter of law, to obtain the precise relief embodied in each of the Decree’s provisions.
Furthermore, it should be noted that, while the Defendants have agreed to the entry of this Decree, they do not admit to violating any constitutional or other rule, standard, or law.

         Following the entry of the 1993 Decree, litigation remained relatively dormant until after the passage in 1996 of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. The PLRA was intended to “reduce the quantity and improve the quality of prisoner suits, ” Porter v. Nussle, 534 U.S. 516, 524 (2002), and “to oust the federal judiciary from day-to-day prison management.” Inmates of Suffolk Cnty. Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997); see 141 Cong. Rec. S. 14316–17 (daily ed. Sept. 26, 1995) (statement of Sen. Abraham) (“No longer, then, will we have consent decrees . . . under which judges control the prisons literally for decades.”). As to this latter goal, the PLRA includes a provision allowing a defendant to obtain relief from preexisting consent decrees that failed to meet the new standards of the PLRA. In particular, the PLRA entitles a defendant to “the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(b)(2).

         In accordance with this provision, in October 1997, the defendants moved to terminate the 1993 Decree. ECF 56. Pursuant to 18 U.S.C. § 3626(e)(2), Judge Motz entered a stay of the 1993 Decree while the motion to terminate was pending. ECF 60. In January 1999, after briefing by both sides, Judge Motz administratively “terminated” the motion to terminate, subject to its being reopened on request. ECF 74. He also administratively closed the case, subject to its being reopened at the request of any party at any time. Id. The stay remained in effect indefinitely.

         On August 16, 2002, the plaintiffs filed an emergency motion seeking to reopen the case and also seeking injunctive relief, including a temporary restraining order, with regard to the risk of heat injury for those confined at the Women’s Detention Center, a facility that is part of the BCDC. See ECF 76. The Court (Davis, J.) granted the temporary restraining order that day. ECF 80. The parties subsequently entered into a Consent Order approved by the Court to reopen the case. ECF 84 (Motz, J.).

         In December 2003, plaintiffs filed a “Motion to Restore the Medical and Physical Plant Provisions of the [1993] Consent Decree to the Active Docket and to Schedule Appropriate Further Proceedings” (ECF 128), along with a memorandum in support (ECF 129) (collectively, “Motion to Restore”). The Motion to Restore described “dangerous conditions” at BCDC and averred that the conditions “violate the Consent Decree previously entered in this case.” ECF 129 at 1. Plaintiffs asked the Court to “reopen this matter to enforce those provisions of the decree with which Defendants are in non-compliance, ” such as maintenance of certain health care standards at BCDC. Id. Further, plaintiffs sought “to enforce the provisions related to sanitation and facility maintenance.” Id. at 2 (citations omitted).

         Defendants opposed the Motion to Restore, arguing that the reopening of the case should be governed by the same standards as a motion to terminate under the PLRA, as the effect was the same: continuation by a federal court of prospective relief in a state prison conditions of confinement case. See ECF 135 at 1–2. And, defendants averred that the plaintiffs “do not allege, nor can they establish, that the relief sought meets this strict standard.” Id. at 2. After plaintiffs filed a reply brief (ECF 142), Judge Motz advised the parties that “the issue would best be framed by the defendants filing [a] renewed motion to terminate.” See ECF 148.

         Soon thereafter, in April 2004, defendants filed a “Renewed Motion to Terminate [the 1993] Consent Decree” (“Motion to Terminate, ” ECF 148). In their Motion to Terminate, defendants argued that “current conditions at BCDC are constitutional” (ECF 148 at 8), and that the 1993 Decree does not satisfy the standards established by the PLRA for the continuation of prospective relief. Id. at 20–38. After briefing, the Motion to Terminate was argued to Judge Motz in August 2004. On August 30, 2004, Judge Motz issued an Order (ECF 196) granting plaintiffs’ Motion to Restore and denying defendants’ Motion to Terminate. However, on November 1, 2014, Judge Motz granted a “Motion for Consideration of Rule 60(b) Relief” (ECF 205), in which he determined to allow plaintiffs to build an evidentiary record through discovery, which would then allow the Court to determine whether to terminate the 1993 Decree. See ECF 217. Thus, Judge Motz held in abeyance the Motion to Terminate (ECF 148). See ECF 217.

         A lengthy period of discovery and settlement negotiations ensued. In August 2009, the parties achieved the PSA (see ECF 374), resolving “all the areas in dispute with the exception of the method of protecting from heat injury detainees with high security or high-medium security classifications.” ECF 374-1 ¶ 5. Pursuant to the class action settlement approval requirements of Fed.R.Civ.P. 23(e), the Court approved the PSA on April 6, 2010. See ECF 394.

         In July 2011, while the parties continued to negotiate in an attempt to resolve the remaining heat injury issue, the case was reassigned to me. See ECF 419. By Order of May 9, 2012 (ECF 465), I approved the parties’ Motion for Approval of First Amendment to the PSA, as amended, which resolved the heat injury issue. See ECF 446; ECF 447; ECF 458.[4]

         In June 2013, the parties consented to an extension of the monitoring period that was part of the PSA (ECF 497), which I approved. ECF 498. Another consent motion for extension of the monitoring was filed in April 2014 (ECF 501), which I approved. ECF 502. A similar consent motion followed in December 2014 (ECF 504), which I also approved. ECF 505.

         Plaintiffs moved to reopen the case on June 2, 2015. ECF 511. It was supported by a legal memorandum that exceeded 100 pages (ECF 511-1) (collectively, the “Motion to Reopen”) and over 60 exhibits. See ECF 513; ECF 517. In general, the Motion to Reopen recounted in detail a host of problems at BCDC, some of which are mentioned below. I granted the Motion to Reopen on June 2, 2015. ECF 516. The parties subsequently engaged in settlement negotiations, which culminated in the Motion pending before this Court. See ECF 552; ECF 571; ECF 572.

         II. The Settlement Agreement

         The Settlement Agreement is about 24 single-spaced pages in length. It provides comprehensive relief to a broad class of detainees at BCDC, and as defined in the Amendment. ECF 572-1, Amendment, ¶ 1. Due to the length of the Agreement, I will summarize the key provisions.

         A. Medical and Mental Health Claims

         1. Medication Provisions

         Plaintiffs’ Motion to Reopen (ECF 511; ECF 511-1) included evidence of failures to continue necessary medications for detainees, both at the time detainees enter BCDC and when prescriptions expire. Id. at 8-16. The Settlement Agreement addresses these issues by committing defendants to provide screening by a registered nurse within four hours of arrival at Baltimore Central Booking and Intake Center and to provide a physical assessment and medications reported by the detainee within 24 hours, if their interruption would pose a risk to the detainee; in the absence of a determination by appropriate medical staff that continuation of the medication is not medically appropriate; or the Division of Pretrial Detention and Services is unable timely to obtain the medication, despite reasonable efforts. The detainee’s medical record must reflect the actions taken by staff related to these requirements. See ECF 541-2, Settlement Agreement, ¶ 17. The Settlement Agreement also requires that, where appropriate, medications must be continued without interruption, in the absence of a clinical judgment to change the prescription, and requires documentation of medication administration. Id. at ¶ 19.a. Similarly, the Settlement Agreement addresses the lack of appropriate documentation of medication administration. Id. at ¶ 19.b.

         2. Development, Updating, and Execution of a Plan of Care and Related Issues

         According to plaintiffs, the absence of a “plan of care for detainees has been a major source of medical errors and failures.” ECF 541-1 at 5-6; ECF 511 at 18-19, 29-30. The Settlement Agreement addresses these concerns by defining the contents of a “Plan of Care, ” establishing timing requirements for the development of plans of care, providing for prompt updating of them, mandating their execution, and providing that plans of care shall be available to all medical staff as a standardized part of each medical record. See ECF 541-2, Settlement Agreement, ¶ 18; see also id., ¶ 25.f (containing similar requirements for the mental health plan of care).

         Moreover, the Plan of Care requirements mandate actual execution of necessary treatment within appropriate times (see Settlement Agreement, ¶¶ 18.d & 19.f), and that medical staff take action to respond to test results. Id., ¶ 19.e. In addition, patients with chronic medical needs must be provided with specialist care. See Id. ¶ 22.b (addressing the requirement for specialty care, including a requirement that members of the class are referred to specialists as medically necessary and setting time limits on the process for review of specialist referrals), see also id., ¶¶ 22.a, 22.c, 22.d. Moreover, the Settlement Agreement requires that a Plan of Care must be developed within seven days of the detainee’s admission into BCBIC. Id., ¶ 18.c.

         3. Treatment of Disabilities

         The Settlement Agreement addresses concerns about housing and other accommodations for persons with disabilities. See Settlement Agreement ¶ 20.b (providing for coordination between custody and medical staff for the provision of accommodations); ¶ 21; (addressing issues regarding persons); ¶ 21.a (mandating the timely delivery of medical supplies). The related issues of proper treatment for open sores, including proper surveillance for Methicillin-resistant Staphylococcus aureus (“MRSA”) infections, are addressed in the requirement in Settlement Agreement ¶ 19.f that testing for MRSA and other diagnostic concerns be conducted in appropriate timeframes.

         4. Availability of the Medical Record

         Problems with the availability of medical records during sick call encounters is addressed in ¶ 24 of the Settlement Agreement.

         5. Initial Medical Screening

         Problems regarding initial screening are comprehensively addressed in ¶ 17 of the Settlement Agreement. These requirements include specification that a decision to accept or reject a detainee for admission to BCBIC must occur whenever a detainee is held there for four continuous hours, and that any detainee accepted for admission who reports a prescription medication or an urgent medical need must be evaluated by a physician or mid-level provider (a nurse practitioner or physician assistant) within 24 hours.

         In addition, detainees reporting use of psychotropic medications or otherwise demonstrating an urgent mental health need will receive a mental health evaluation within 24 hours, and detainees accepted for admission who report prescribed medication that, if interrupted, would affect their health must be provided with that medication within 24 hours of reporting, unless it is not medically appropriate or Defendants are unable to obtain a particular medication within that period, despite reasonable efforts. See Settlement Agreement ¶ 17.

         The provisions of ¶ 22 of the Settlement Agreement address timely review of requests for specialist appointments, while ¶ 23 requires sets timelines for sick call responses. The ...

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