Barnett v. Tony
| Decision Date | 19 November 2021 |
| Docket Number | 20-61113-CIV-DIMITROULEAS/SW |
| Parties | CODY BARNETT, WILLIAM BENNET, CHRISTOPHER BROWN, JESSE CALLINS, GREGORY DUNNING, BERNARD FRANKLIN, RICARDO GONZALES GUERRA, HEATHER LEWIS, ROBERT MORRILL, SAMUEL PAULK, HELEN PICIACCHI, DARIUS WALKER GREAVES and TODD WATSON, on their own and on behalf of a class of similarly situated persons,, Plaintiffs, DISABILITY RIGHTS FLORIDA, INC., Plaintiff, v. GREGORY TONY, in his official capacity as Sheriff of Broward County, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATION ON MOTION FOR ENFORCEMENT AND MODIFICATION OF CONSENT DECREE
THIS CAUSE is before the Court on Plaintiffs', Cody Barnett et al. (the “Plaintiffs”), Motion for Enforcement and Modification of Consent Decree (the “Motion”). (ECF No. 130) The Honorable William P Dimitrouleas referred the Motion to United States Magistrate Judge Lurana S. Snow for appropriate disposition or report and recommendation pursuant to 28 U.S.C. § 636. (ECF No 139) An evidentiary hearing (the “Hearing”) was held before the undersigned via Zoom on October 21, 2021 pursuant to this Court's Order. (ECF No. 149) This matter is now ripe for review.
On June 5, 2020, Plaintiffs, for themselves and proposed class members imprisoned at the Broward County Jail (the “Jail”), filed a complaint and petition for writ of habeas corpus alleging that the conditions of their confinement violated their rights under the Eighth and Fourteenth Amendments, the Americans with Disabilities Act, and the Rehabilitation Act. (ECF No. 142 at 1) Plaintiffs sued Defendant Gregory Tony, the Sheriff of Broward County, Florida in his official capacity (the “Defendant”), seeking remedies to address alleged substantial risks of their contracting COVID-19, and of suffering serious illness or death should they contract the virus. (ECF No. 142 at 1)
Plaintiffs and Defendant subsequently negotiated a Settlement Agreement (the “Settlement Agreement”) that included a certification of a Settlement Class, which was executed on November 30, 2020. (ECF Nos. 130 at 11; 103-1) The District Court approved the Settlement Agreement on May 13, 2021. (ECF No. 112) As part of the Settlement Agreement, Defendants committed to undertaking a series of measures to protect class members from COVID-19 infection. Plaintiffs now move to enforce and modify the Settlement Agreement. (ECF No. 130)
First, Plaintiffs argue that Defendant has failed to carry out several of its obligations as outlined in the Settlement Agreement. (ECF No. 130 at 9) To establish this, Plaintiffs rely on the testimony of multiple detainees and the testimony and Report of Dr. Homer Venters (ECF No. 131-8), which was completed after a two-day inspection of the Jail. (ECF No. 130 at 9) On October 21, 2021, the Hearing was held before the undersigned via Zoom. At the Hearing, Plaintiff presented five witnesses: Dr. Venters, Damar Pink, Roy Williams Simpson, III, Lemar Thomas, and Quintin Dominique Kersey. (ECF No. 163)
Dr. Venters, an expert in health and epidemiology, testified at the Hearing as to what he witnessed at the Jail during his inspection. Dr. Venters testified that while at the time of his inspection there were procedures in place “to ask people about COVID symptoms and check their temperature on the way in the door, ” Defendant was not testing newly admitted detainees for COVID-19 at intake. (ECF No. 163 at 22) He continued, “I don't believe that there was a symptoms screen for people going to court or returning from court and I don't believe that there was a test.” Id. at 39. Similarly, Dr. Venters testified that he did not believe that individuals were being tested prior to release into the community unless that individual was being released to certain community programs. Id. at 40. Nor did he believe that Defendant was testing detainees prior to inter-facility transfers. Id. at 42. Dr. Venters also testified that to his knowledge, there was no systematic testing of staff for COVID-19. Id. at 30. Dr. Venters found this to be problematic because staff are generally considered to be the “primary vectors” for COVID-19 to infiltrate correctional facilities. Id. at 29-30.
Next, Dr. Venters testified that newly admitted detainees could spend anywhere from one to four days at a transitional area called a “bus stop” prior to any cohorting and that those in need of mental health or medical services were “going straight into these units” and were not subject to a 14-day cohort period prior to going to the infirmary or mental health unit. Id. at 32. Based on conversations with detainees and staff, Dr. Venters determined that “it does not appear that all high-risk people are identified at intake.” Id. at 63. Additionally, Dr. Venters expressed his understanding that Defendant was not serially re-testing or appropriately monitoring for COVID-19 symptoms for detainees in quarantine units after initial intake. Id. at 34-35.
Finally, Dr. Venters testified about several best-practices that Defendant could implement to lower the risk of a COVID-19 outbreak and opined on the COVID-19 vaccination rate at Defendant's facilities, deeming it lower than comparable correctional facilities with which he has worked. Id. at 46-47. In response to questions posed by the undersigned to Dr. Venters regarding whether any of those facilities with higher vaccination rates were located in states such as Florida or Texas where vaccine mandates are prohibited, Dr. Venters responded that none of those facilities was located in such a state. Id. at 56-57. Dr. Venters did not know whether the lower vaccine rate in this case was reflective of the larger community outside of the Jail. Id.
Damar Pink, an inmate at one of Defendant's facilities, testified as to his personal experiences with COVID-19 practices in the Jail. He stated that at least some detainees are only screened, and not tested, for COVID-19 while displaying certain symptoms such as coughing and sweating. Id. at 95, 106-108. Mr. Pink further testified that he was not automatically re-tested when his roommate's COVID-19 test came back positive while he was housed in a quarantine unit. Id. at 101-105. Instead, Mr. Pink had to put in a sick call request in order to get a second test. Id. Additionally, Mr. Pink testified that he was not screened or tested for COVID-19 prior to being transferred from one unit to another within the same facility. Id. at 96. Regarding replacement and availability of masks, Mr. Pink testified that the longest he had gone without mask replacement was about three months. Id. at 111.
Roy Williams Simpson, III, another detainee, testified that he was not tested for COVID-19 or temperature checked before attending court visits. Id. at 176. Similarly, he testified that he was not tested or temperature checked before being transferred to a new unit within the same facility. Id. at 124-125. Mr. Simpson also stated that he was tested only once while in a quarantine unit. Id. at 127-128. Mr. Simpson described in detail his medical conditions, including COPD, hypertension, and hepatitis C. Id. at 125. Mr. Simpson testified that despite these conditions, he was not temperature checked or otherwise monitored for COVID-19 on a regular basis. Id. at 175-176. Regarding replacement and availability of masks, Mr. Simpson related that he was given two cloth masks approximately three weeks before the Hearing; prior to that time, he only had one cloth mask. Id. at 178-180. Similarly, he testified that the disposable medical mask that he wears has not been replaced since August. Id.
Lemar Thomas, the third detainee to testify, stated that during the intake process he was never tested or screened for symptoms. Id. at 138-139. Nor was he re-tested in a quarantine unit after another detained person had tested positive for COVID-19. Id. at 153. Mr. Thomas also testified that he was not tested or screened before any of the five times that he was transferred to different facilities or units. Id. at 164. Furthermore, Mr. Thomas described his experience sleeping on a plastic bed called a “boat” prior to his 14-day cohort period, where it was practically impossible to be socially distanced from others. Id. at 139-141.
Quintin Dominique Kersey, a detainee and Plaintiffs' final witness, testified that he was not tested or screened for symptoms during the intake process. Id. at 190-191. Mr. Kersey also stated that he was not tested or screened before or after any of his multiple court appearances. Id. at 196, 198, 200, 201. Likewise, Mr. Kersey testified that he was not tested prior to being transferred to different facilities or units. Id. at 191-195. Mr. Kersey also described his experience of being taken to the infirmary, and then the main jail, before his 14-day cohort. Id. at 191-192.
Plaintiffs rely on the testimony of these witnesses primarily in support of their request for enforcement of the Settlement Agreement. Plaintiffs argue, in addition, that the Settlement Agreement should be modified because it was limited by the knowledge that was available in November of 2020, before the COVID-19 vaccines were available, and prior to the current “Delta” outbreak. (ECF No. 130 at 10) Plaintiffs note that currently, only 28.2% of detainees within the Jail are vaccinated, which is “substantially lower than the average rate both in the Broward community and among correctional facilities nationwide.” Id. Accordingly, Plaintiffs believe Defendant should be required to do more to increase the vaccination rates of both prisoners and prison staff.
To illustrate the significance of the Motion, Plaintiffs assert that the result of Defendant's failures combined with changed circumstances have led to a...
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