Duvall, et al v. Hogan, et al

Filing 723

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 5/20/2021. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEROME DUVALL, et al.,
Plaintiffs,
v.

Civil Action No. ELH-94-2541

LAWRENCE HOGAN, JR., et al.,
Defendants.
MEMORANDUM OPINION
This Memorandum Opinion addresses “Plaintiffs’ Motion For Enforcement And Further
Relief” (ECF 675) and “Plaintiffs Renewed Motion For Enforcement And Further Relief.” ECF
702. These motions are supported by memoranda (ECF 675-1; ECF 702-1) and numerous
exhibits. They pertain to ongoing litigation concerning the health, welfare, and safety of pretrial
detainees at the Baltimore City Detention (“BCDC”). The litigation has endured for nearly six
decades. 1
Plaintiffs consist of a class of individuals detained at a portion of BCDC known as the
Baltimore City Booking and Intake Center (“BCBIC”). The defendants have changed over time.
Currently, they are Lawrence J. Hogan, Jr., the Governor of Maryland; Robert L. Green, the
Secretary of the Maryland Department of Public Safety and Correctional Services (“DPSCS”);
and Michael R. Resnick, Esquire, the Commissioner (the “Commissioner”) of the Maryland
Division of Pretrial Detention and Services (“DPDS”). See ECF 709 at 1.

1

The case was opened in 1976 and initially assigned to the late Judge Frank A. Kaufman.
See case 76-1255. In 1994, the Clerk was directed to close case 76-1255 and to open case 942541 as a new matter. See ECF 1. 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.
Because of the age of the case, many filings are not electronically available. The filings
became electronically available as of October 16, 2002, with ECF 89 in case 94-2541.

Over the years, the case has resulted in countless court orders, as well as multiple
settlement agreements. 2 The case has been closed and reopened on occasions too frequent to
recount. Several of the Court’s orders provide for continued monitoring of certain aspects of the
operation of BCDC and the conditions of confinement at the facility.
Of relevance here, the parties entered into a Settlement Agreement on November 16,
2015. See ECF 541-2; ECF 552. Thereafter, they sought judicial approval of the settlement
agreement. ECF 571. Then, on June 23, 2016, the parties entered a “First Amendment to
Settlement Agreement” (“Amendment”). ECF 574. Unless otherwise noted, I shall refer to the
Settlement Agreement and the Amendment collectively as the “Settlement Agreement” or the
“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 of the
Women’s Detention Center, the Annex, and the Wyatt Building. The Amendment extended most
of the provisions in the Settlement Agreement to pretrial detainees at BCBIC. See ECF 572-1.
The Court held hearings as to the settlement on April 15, 2016 (ECF 555) and June 28,
2016. ECF 573. By Memorandum Opinion (ECF 575) and Order (ECF 577) of June 28, 2016, I
approved the Agreement. 3 The case was closed. See Docket.
The Agreement, by its terms, was originally set to terminate in June 2020. ECF 577. But,
plaintiffs moved to reopen the case in 2018. ECF 582. They also moved to enforce the
Agreement. ECF 583. Those disputes were ultimately resolved by an agreement of the parties to
2

The “tortured procedural history” of this case is recounted in the Court’s Memorandum
Opinion of June 28, 2016. ECF 575.
3

In addition, I issued a separate Order awarding attorneys’ fees to plaintiffs’ counsel.
ECF 576.
2

extend the expiration of the Settlement Agreement.

ECF 640.

The Court approved that

modification by Order of May 28, 2019. ECF 642. Therefore, the Settlement Agreement is now
set to expire on June 22, 2022. Id.
During the past year, plaintiffs have filed several motions in relation to the COVID-19
pandemic. In particular, on April 9, 2020, plaintiffs filed an “Emergency Motion For Relief From
Risk Of Injury And Death From COVID-19.” ECF 645. They also filed supplements. ECF 652;
ECF 669. In the motion, plaintiffs asserted that defendants had failed to implement adequate
measures at BCBIC to mitigate the risk posed by the coronavirus. See ECF 645-1 at 9-11.
The court held a hearing on the motion on June 16, 2020. ECF 668. 4 Thereafter, by
Memorandum Opinion (ECF 670) and Order (ECF 671) of June 19, 2020, I denied the request
for relief, concluding that plaintiffs did not establish that defendants’ response to the pandemic
violated either the Settlement Agreement or the Constitution. ECF 670; ECF 671. Rather, I
found that the evidence demonstrated a concerted, deliberate effort on the part of defendants to
safeguard the health and welfare of the detainees. However, I have since issued various orders
relating to defendants’ response to the pandemic. See ECF 674 (Order requiring defendants to
develop a policy governing the monitoring and treatment of detainees at heightened risk); ECF
684 (Order requiring weekly COVID-19 testing and mask distribution); ECF 722 (Order
requiring disclosure of information regarding COVID-19 vaccines).
Plaintiffs filed their “Motion to Enforce the Settlement Agreement” (ECF 675) on July
31, 2020. The parties subsequently agreed to hold the motion in abeyance, pending mediation
with Magistrate Judge Timothy Sullivan. ECF 686. Ultimately, the parties were unable to
resolve their disputes. See ECF 699. As a result, plaintiffs renewed their motion on November
4

Due to the pandemic, the hearing was held by video.
3

20, 2020. ECF 702. I shall refer to ECF 675 and ECF 702 collectively as the “Motion.”
In the Motion, plaintiffs assert that over the past four years defendants have failed to
achieve substantial compliance with the Settlement Agreement because of “their lack of any
incentive to do so.” ECF 702-1 at 1. Thus, plaintiffs seek various forms of relief including, inter
alia, a court order requiring defendants to develop a detailed plan with timelines and a deadline
for achieving compliance. They also seek an extension of the terms of the Settlement Agreement
for an additional two years.
Defendants oppose the Motion (ECF 709) and submitted three exhibits. ECF 709-1 to
ECF 709-3. Plaintiffs replied (ECF 721) and submitted additional exhibits. ECF 721-1; ECF
721-2.
No hearing is necessary to resolve the Motion. For the reasons that follow, I shall grant
the Motion, in part.
I.

Background 5

A. The Settlement Agreement
The Settlement Agreement pertains to a broad class of detainees at BCBIC and concerns
various issues. See ECF 541-2. In particular, the Agreement addresses the following areas:
medical and mental health care; “physical plant” issues; the provision of accessible living and
personal hygiene areas for persons with disabilities; and requirements for building maintenance,
housekeeping, and sanitation. ECF 541-2.
The Agreement contains ten “substantive provisions.” The category of “Medical and
Mental Health Care” includes “Intake and initiation of medication” (¶ 17); “Medical Plan of
5

I incorporate by reference all relevant background information as contained in my
opinions of June 28, 2016 (ECF 575) and June 19, 2020 (ECF 670). The facts set forth here are
limited to those pertinent to the Motion.
4

Care” (¶ 18); “Medication Management and Testing” (¶ 19); “Interaction Between Medical and
Custody” (¶ 20); “Accommodations for plaintiffs with disabilities” (¶ 21); “Specialty
Care/Consultation” (¶ 22); “Sick Call” (¶ 23); “Medical Records” (¶ 24); and “Mental Health
Care” (¶ 25). In addition, it includes a substantive provision in the category of “Physical Plant.”
See id. ¶ 26.
Of relevance here, the Agreement creates a structure to achieve compliance with the
substantive provisions of the Agreement. This structure includes a “compliance coordinator,”
appointed by the Commissioner, and three “Monitors” who have “professional training and
experience in evaluation and supervision of correctional programs in the areas covered by the
agreement.” Id. at 13, 16.
The responsibilities of the Monitors include, in pertinent part, id. ¶ 38:
a. Conduct on-side inspections of BCDC as necessary in their professional
judgment to monitor the implementation of this Settlement Agreement, but
no less frequently than once every six months for the first two years from the
Effective Date.
b. Review evidence relating to compliance and assess the Commissioner’s
progress in meeting the requirements of this Settlement Agreement, including
assessing any allegations of Plaintiffs regarding lack of compliance…
In addition, the Settlement Agreement includes various reporting requirements. First, the
“Commissioner shall submit semi-annual compliance reports to the Monitors, with a copy to
Plaintiffs’ counsel.” Id. ¶ 34. The Commissioner’s compliance report “shall describe the status of
compliance, including changes in that status, during the reporting period, and further steps
anticipated during the next reporting period, to implement the terms of this Settlement
Agreement.” Id.
Substantial compliance is defined in the Agreement as follows, id. ¶ 39:

5

For purposes of this Settlement Agreement, “substantial compliance” means that
the Commissioner has achieved: (a) full compliance with the components of the
relevant substantive provision of this Settlement Agreement; or (b) sufficient
compliance with the components of the relevant substantive provision of this
Settlement Agreement such as to remove significant threat of constitutional injury
to the plaintiff class posed by any lack of compliance with the components of that
substantive provision. For purposes of this Settlement Agreement, a “substantive
provision” means the requirements set forth in a single numbered paragraph in
Section III of this Settlement Agreement.
And, when the Commissioner claims to have attained substantial compliance with any
provision of the Settlement Agreement, the Monitor is to issue a report assessing the claim of
substantial compliance. In particular, the Agreement provides, id. ¶ 38(d)(i):
Within two months of the submission of a semi-annual compliance report by the
Commissioner in which the Commissioner claims to have achieved substantial
compliance with one or more substantive provisions of this Settlement
Agreement, the appropriate Monitor shall issue a report stating whether the
Commissioner has achieved substantial compliance with each applicable
substantive provision of this Settlement Agreement at issue.
Notably, “[i]f and when the Commissioner achieves substantial compliance with a
substantive provision of this Settlement Agreement, and maintains substantial compliance with
such substantive provision for at least six months, such substantive provision of this Settlement
Agreement shall be deemed satisfied.” Id. ¶ 40.
Further, the Settlement Agreement provides that it “shall terminate” either when the
Commissioner has achieved substantial compliance or four years from the effective date,
whichever is earlier. Id. ¶ 42. The “Effective Date” is defined as “the date the Court enters th[e]
Settlement Agreement as an order of the Court.” Id. ¶ 6.
Of relevance here, the Agreement allows for an extension beyond four years if “Plaintiffs
have previously obtained an order from the Court that is fully compliant with 18 U.S.C. §
3626(a)(1) and that finds that the extension of one or more substantive provisions of this
Settlement Agreement is necessary to correct an identified, ongoing constitutional violation,
6

extends no further than necessary to correct that ongoing violation, and is the least intrusive
means necessary to correct that ongoing violation.” Id.
With regard to the role and responsibility of the Court, the Agreement states, in relevant
part, id. ¶ 49:
49. The parties consent to the reservation and exercise of jurisdiction by the Court
over all disputes between and among the parties arising out of this Settlement
Agreement, subject to satisfaction of the following protocol:
a. If, prior to any finding of substantial compliance by a Monitor, Plaintiffs
assert that Defendant are not in compliance with one or more of the
obligations under this Settlement Agreement, Plaintiffs shall provide
Defendants with a written notice to that effect….
b. The notice required in subsection (a) shall be providied in writing to
Defendants at least 30 days before the filing of any motion for enforcement
by Plaintiffs…
The last four paragraphs of the Agreement are also pertinent to the Motion. The
Agreement provides:
50. The issue of liability has not been litigated. Defendants deny all the
allegations in the complaint filed in this case. This Settlement Agreement does not
constitute and shall not be construed or interpreted as an admission of wrongdoing
or liability by any party.
51. The parties stipulate and jointly request that the Court find that, as of the
Effective Date, this Settlement Agreement satisfies the requirements of 18 U.S.C.
§ 3626(a)(1)(A) in that it 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 of Plaintiffs.
52. The parties jointly request that the Court grant preliminary approval to this
Settlement Agreement, provide notice to the class, and schedule a hearing
regarding the appropriateness of final approval pursuant to Fed. R. Civ. P. 23e.
The parties further request that, following a fairness hearing, the Court give final
approval to this Settlement Agreement; expressly adopt it as an order of the
Court; and retain jurisdiction for the purpose of enforcing this Settlement
Agreement.
53. This Settlement Agreement may be modified at any time upon written
agreement of the parties and approval by the Court.
7

B. Compliance
Pursuant to the terms of the Agreement, the Commissioner issued his semi-annual
compliance report in August 2020. ECF 702-3. It states that DPSCS “declares Substantial
Compliance with provisions 17 a, b, d, and e; 20 a and d; 21 c; and 23 a – c. Pursuant to
provision 40, the Commissioner asserts maintaining substantial compliance with substantive
provisions 20 c, e, f, and g; and 21 b and d. Additionally, there continues to be improvement on
provisions 18, 20, and 22.” Id. at 2.
Thereafter, Michael Puisis, D.O., the independent medical monitor, and Raymond
Patterson, M.D., the independent mental health monitor, issued reports assessing the
Commissioner’s claims of compliance and reviewing conditions at BCBIC. See ECF 702-7
(Puisis Report); ECF 704 (Patterson Report).
Dr. Puisis evaluates defendants’ performance using three measures: noncompliance,
substantial compliance, and “partial compliance.” Partial compliance is not a defined term in the
Settlement Agreement, however. But, according to Dr. Puisis, “partial compliance” is “defined
as between non-compliance and substantial compliance with reasonable efforts ongoing to
achieve compliance.” ECF 702-7 at 5. Although it seems to be a useful term to track progress,
the provisions that have been assessed as having “partial compliance” would fall under the
category of noncompliance.
The following chart reflects the assessments from the three reports submitted as of
August 2020.
Provision

Commissioner’s Report (ECF 702-3)

17.a.
17.b.
17.c.

Substantial compliance
Substantial compliance
Noncompliance
8

Monitors’ Reports (ECF 702-7; ECF
704)
Partial compliance
Partial compliance
Noncompliance

17.d.
17.e.
18a-f

Substantial compliance
Substantial compliance
Noncompliance in all components

Partial compliance
Partial compliance
Partial compliance

19a-g

Noncompliance in all components

Noncompliance

20.a.
20.b.
20.c.

Substantial compliance
Noncompliance
Continued substantial compliance

20.d.
20.e.

Substantial compliance
Continued substantial compliance

20.f.

Continued substantial compliance

20.g.

Continued substantial compliance

21.a.
21.b.

Noncompliance
Continued substantial compliance

Partial compliance
Noncompliance
Substantial compliance (previously
verified)
Partial compliance
Substantial compliance (previously
verified)
Substantial compliance (previously
verified)
Substantial compliance (previously
verified)
Noncompliance
Substantial compliance

21.c.
21.d.

Substantial compliance
Continued substantial compliance

Partial compliance
Substantial compliance

22a-e

Noncompliance in all components

Noncompliance

23.a.
23.b.
23.c.
23.d.
24.a.
25a-g

Substantial compliance
Substantial compliance
Substantial compliance
Noncompliance
Noncompliance
Noncompliance in all components

Partial compliance
Partial compliance
Partial compliance
Partial compliance
Noncompliance
Noncompliance

26

Substantial compliance

Substantial compliance (previously
verified, see ECF 720-3)

In sum, as Dr. Puisis explains, ECF 702-7 at 6: “There are 37 medical provisions to be
judged. The current status is that six provisions are substantially compliant and all six have
remained substantially compliant for two visits. Eighteen provisions are partially compliant,
three provisions having moved from partial compliance to noncompliance but five other
9

provisions moving from noncompliance to partial compliance. Thirteen provisions are noncompliant. DPSCS claims compliance for 10 items but all ten remain partially compliant.”
Additionally, there are eight mental health provisions. See ECF 541-2, ¶¶ 17(c), 25(a)-(g). All
remain noncompliant.
Dr. Puisis provides a number of useful details about prison conditions and defendants’
progress in the executive summary of his report. As to the physical plant, he states, ECF 702-7 at
6: “There have been few changes to the medical physical plant at BCBIC. While I believe the
physical plant issues continue to affect ability to perform, particularly in intake, the medical
programs continues [sic] to plod on, attempting to improve despite the physical plant limitations.
There are no plans to make any major physical plant changes. I was told that there have been no
changes to the woman’s [sic] clinic.”
With respect to training, Dr. Puisis states: “Training resources are currently nonexistent.”
Id. at 6. In fact, he notes: “Current training is ad hoc and left up to supervisory staff…to figure
out which is a recipe for failure.” Id.
Dr. Puisis reviewed meeting minutes from four DPSCS meetings from the first half of
2020 regarding “[q]uality improvement efforts.” Id. at 7. According to Dr. Puisis, three out of the
four meetings were “focused almost entirely on obtaining a good score on Duvall audits. The
focus is very intense.” Id. Further, he posits, id.: “This compliance approach focuses on minute
details of the operations that may or may not reflect or affect overall quality. More importantly,
the compliance approach focuses entirely on compliance scores even when the compliance
approach may be auditing a defective process that will not actually improve quality of care. This
is driven by a strategy that continues to utilize broken processes and audit against them. The
result is continual dysfunction and chasing one bad development after another.”
10

To illustrate the problem of “broken processes,” Dr. Puisis provided a few examples. Id.
at 7-8. For instance, he points to the requirement in provision 19c “that policy and procedure are
implemented to ensure that when a clinician orders vital signs or blood sugar tests that they are
documented and reviewed.” Id. at 7. According to Dr. Puisis, the “scores are abysmal. Only 5%
of ordered vital signs are completed. The organization is assiduously and painfully analyzing
why nurses are not receiving orders, how nurses are completing orders, and the documentation
by providers of review.” Id. But, he continues, there “is no policy requirement with respect to
ordering vital signs. Moreover, no one has asked a simple question, why do we order vital signs
and how do vital signs advance and promote improved quality?” Id.
According to Dr. Puisis, the “processes” he has “described represent fragmentation,
working in silos, collection of information that is apparently not used by clinicians, lack of
communication between nurses and physicians and ineffective management that results in
wasted work complicated by possible lack of documentation in the medical record.” Id. at 9. In
his view, these are “processes of care that need to be evaluated, repaired, and memorialized in
standard procedures that are clear for all staff.” Id. He adds, id.: “If efforts are intensely focused
on obtaining a good score without attempting to ensure that a good process is audited, the system
will obtain a good score at incredible effort that will be auditing a defective process that may or
may not reflect compliance with the Settlement Agreement.”
Based on those examples, Dr. Puisis “recommend[s] hiring a process expert to be part of
the quality effort, at least for a couple years until DPSCS is capable of leading this effort on their
own. That expert should work with key clinical and administrative leaders who are authorized to
change procedures as needed…. Key areas of focus for process analysis, as a start, should be

11

medication management, intake, detoxification, sick call, and scheduling. The implementation of
the new electronic record should be included as an overriding process.” Id.
Notably, despite his sharp criticism, Dr. Puisis states, id. at 10: “I had multiple calls with
DPSCS staff. They submitted numerous data. DPSCS was cooperative in submitting any data
requests I had. They need to be acknowledge [sic] also for the work they have completed in their
attempts to obtain compliance with less than adequate support with respect to facilities and the
lack of a functional record system.”
As to mental health services, Dr. Patterson reports that DPSCS “has not declared
Substantial Compliance for any provisions of the Settlement Agreement regarding mental health
services.” ECF 704 at 3. Nonetheless, in his findings, Dr. Patterson makes note of improvements
as well as continuing challenges towards progress. He asserts, id. at 10: “The addition of a State
Chief Psychologist is very positive and it is anticipated that another State Psychologist will join
the staff in the near future. However, multidisciplinary treatment team planning by State
Psychology and Centurion [defendants’ for-profit mental health contractor] continues to be
inadequate.” Further he notes, the electronic health record “remains problematic for the staff to
enter, document, track, and extract necessary information. Efforts to move forward on a new
contract are continuing, but it has not yet materialized.” Id.
Significantly, Dr. Patterson also indicates that COVID-19 has and will continue to have
an impact on the facility. Id. at 11. He adds, id.: “It is anticipated that the impact of COVID-19
will continue for an extended period of time and therefore the provision of services will require
adjustments in a number of areas to appropriately serve the needs of mentally ill detainees
housed in the BCBIC.”
Additional facts are included, infra.
12

II.

Discussion

Plaintiffs assert that the Court has “plenary power to enforce the settlement agreement
and to set deadlines for compliance.” ECF 702-1 at 16. Alternatively, plaintiffs urge the Court to
modify the Settlement Agreement, under Fed. R. Civ. P. 60(b), to impose deadlines for
compliance and extend the terms of the Agreement by an additional two years. Id. at 19-22.
Defendants do not contend that they are in compliance with the Settlement Agreement.
But, they insist that plaintiffs’ requested relief is foreclosed by State and federal law. First,
defendants urge the Court to decline to consider the Motion because plaintiffs failed to provide
defendants with notice “as required by the Settlement Agreement before seeking intervention
from the Court.” ECF 709 at 10-12. Second, defendants assert that the Motion is barred by the
Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e et seq. Id. at 13. According
to defendants, plaintiffs seek judicial enforcement of a settlement agreement, not a consent
decree, so plaintiffs may only seek prospective relief by demonstrating that the conditions within
the facility violate their constitutional rights. Id. at 14, 21. And, defendants posit, plaintiffs have
failed to establish that the defendants acted with deliberate indifference to serious medical or
mental health care needs of the inmates. Id. at 21-26. Last, defendants maintain that plaintiffs
have filed to establish that they are entitled to a modification of the Agreement under Rule 60(b).
Id. at 26-31.
Plaintiffs vigorously dispute all of defendants’ contentions. In particular, they maintain
that the PLRA does not bar the Motion because courts “need not find a new constitutional
violation in order to enforce a settlement agreement,” such as the Agreement; the Settlement
Agreement is a consent decree, not a private settlement agreement under the PLRA; and the
Court has “inherent power” to enforce the Agreement. ECF 720 at 9-13. Plaintiffs also contend
13

that they have met the standard to modify the Agreement and to extend the termination date.
ECF 720 at 14-17.
A. Notice
As a threshold matter, defendants urge the Court to dismiss the Motion on the ground that
plaintiffs failed to provide defendants with the notice required under the Settlement Agreement.
ECF 709 at 10.
As noted, under the Agreement the parties consented to the Court retaining jurisdiction
over disputes arising out of the Agreement, but only under certain conditions. In this regard, the
Settlement Agreement provides:
a. If, prior to any finding of substantial compliance by a Monitor, Plaintiffs
assert that Defendants are not in compliance with any one or more of the
obligations under this Settlement Agreement, Plaintiffs shall provide
Defendants with a written notice to that effect. The written notice of noncompliance shall set forth the specific substantive provisions of this
Settlement Agreement with which Plaintiffs contend the Commissioner is not
in compliance, and shall provide a summary of the factual basis for the alleged
non-compliance with sufficient specificity to allow Defendants to understand
the precise nature of the alleged non-compliance.
In addition, paragraph 49(b) of the Agreement requires the notice to be “provided in
writing to Defendants at least 30 days prior to the filing of any motion for enforcement by
Plaintiffs.”
Plaintiffs do not dispute that they did not file a 30-day notice in writing prior to filing the
Motion. See ECF 709-2 (Email from plaintiffs’ counsel to defendants’ counsel confirming that
they did not send notice). Nonetheless, plaintiffs contend that the notice requirement does not bar
the Court’s consideration of the Motion. ECF 720 at 18. According to plaintiffs, the provision in
paragraph 49(a) is no longer in effect because a Monitor has “made a finding of substantial
compliance” as to Paragraph 26 of the Agreement. Id. But, even if it was still in effect, plaintiffs
14

claim that this would not bar the Court’s consideration of the Motion because the provision only
requires notice prior to a “motion for enforcement,” not for modification. Id. And, “[m]ore
fundamentally,” plaintiffs argue, defendants “claim no prejudice” from plaintiffs’ failure to
provide notice. Id. at 19. Further, they argue that defendants were put on notice in July 2020,
when plaintiffs filed the first motion to enforce. Id. at 19-20.
I am satisfied that the notice requirement does not preclude the Court from considering
this Motion.
To be sure, plaintiffs have not complied perfectly with the notice requirement under
paragraph 49. But, it is clear that defendants were put on notice of plaintiffs’ claims and
demands well before plaintiffs filed the second, renewed Motion in November 2020. In
particular, in July 2020, plaintiffs first filed a motion alleging defendants’ noncompliance with
the Agreement. See ECF 675. Thereafter, the parties agreed to hold the motion in abeyance while
they participated in settlement discussions with Judge Sullivan in September and October of
2020. The renewed motion was filed in November 2020, only after the parties were at an
impasse. ECF 699.
Thus, under the particular circumstances attendant here, it is clear that long before the
renewed Motion was filed in November 2020, defendants had actual knowledge of plaintiffs’
complaints under the Settlement Agreement. They have not been prejudiced in any way as a
result of plaintiffs’ failure to send a formal notice. See B & P Enters v. Overland Equip. Co., 133
Md. App. 583, 613, 758 A.2d 1026, 1041 (2000) (Hollander, J.) (finding plaintiff’s failure to
provide notice of breach of contract did not bar suit when opposing party had actual notice of its
breach and suffered no prejudice from lack of notice).

15

To reject the Motion on the ground of failure to comply with the notice requirement
would exalt form over substance. Accordingly, I will consider the Motion.
B. Motion to Enforce
Plaintiffs contend that the Court has plenary power to enforce the Settlement Agreement
and to set deadlines for compliance. ECF 702-1. They ask the Court to grant the following relief,
ECF 702 at 1:
1. That Defendants shall submit within 30 days a detailed plan, including
timelines, for achieving compliance with each Provision of the Settlement
Agreement for which they concede non-compliance in the Commissioner’s
Semi-Annual Compliance Report, dated February 28, 2020.
2. Following the submission of Defendants’ plan, that the Court schedule an
evidentiary hearing to receive evidence, including but not limited to
testimony from the independent medical and mental health monitors,
regarding the causes of Defendants’ failure to make progress in achieving
compliance with numerous provisions of the Settlement Agreement.
3. That the Court establish deadlines for Defendants to comply with the
provisions of the Settlement Agreement, with a final deadline for full
compliance of June 22, 2024.
Plaintiffs also ask the Court to extend the Settlement Agreement for an additional two
years. Such a change entails a modification of the terms. See Thompson v. U.S. Dep't Of Hous.
& Urb. Dev., 404 F.3d 821, 824 (4th Cir. 2005) (holding that extension of a consent decree's
termination date required modification of the decree). I shall discuss this request, infra.
Defendants’ primary argument in opposition to plaintiffs’ requests is that the PLRA bars
the Court from enforcing the Agreement and granting the requested relief. ECF 709 at 13. The
PLRA limits the power of federal courts to grant or approve certain remedies in actions
challenging prison conditions. It states, in part, 18 U.S.C. § 3626(a)(1)(A):
Prospective relief in any civil action with respect to prison conditions shall extend
no further than necessary to correct the violation of the Federal right of a
particular plaintiff or plaintiffs. The court shall not grant or approve any
16

prospective relief unless the court finds that such 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.
The “term ‘prospective relief’ means all relief other than compensatory monetary
damages.” Id. § 3626(g)(7). And, “the term ‘relief’ means all relief in any form that may be
granted or approved by the court, and includes consent decrees but does not include private
settlement agreements…” Id. § 3626(g)(9).
As a threshold matter, the parties disagree as to whether the Settlement Agreement
constitutes a consent decree or merely a settlement agreement. The dispute implicates the
Court’s role in oversight of the Agreement, including the ability to extend it.
A consent decree allows for judicial approval and oversight, including enforcement
actions. Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 281 (4th Cir. 2002) (“A consent decree,
because it is entered as an order of the court, receives court approval and is subject to the
oversight attendant to the court's authority to enforce its orders, characteristics not typical of
settlement agreements.”). With respect to the PLRA, a “consent decree” is defined as “any relief
entered by the court that is based in whole or in part upon the consent or acquiescence of the
parties but does not include private settlements.” 18 U.S.C. § 3626(g)(1).
Notably, “‘[a] consent decree, although founded on the agreement of the parties, is a
judgment. It has the force of res judicata, protecting the parties from future litigation. As a
judgment, it may be enforced by judicial sanctions, including citation for contempt if it is
violated.’” Smyth ex rel. Smyth, 282 F.3d at 280 (quoting United States v. Miami, 664 F.2d 435,
439–40 (5th Cir. 1981) (en banc) (concurring opinion of Rubin, J., joined by Brown, Anderson,
Randall, and Thomas A. Clark, JJ.)).

17

In contrast, a settlement agreement generally does not involve oversight by a court.
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 532 U.S.
598, 604 n. 7 (2001) (“Private settlements do not entail the judicial approval and oversight
involved in consent decrees. And federal jurisdiction to enforce a private contractual settlement
will often be lacking unless the terms of the agreement are incorporated into the order of
dismissal.”); see Smith ex rel. Smyth, 282 F.3d at 280. A “private settlement agreement” is
defined in the PLRA as “an agreement entered into among the parties that is not subject to
judicial enforcement other than the reinstatement of the civil proceeding that the agreement
settled.” 18 U.S.C. § 3626(g)(6).
Defendants contend that the Settlement Agreement is not a consent decree because the
Court did not “direct the defendants to comply with the agreement or order or enjoin them to
provide any prospective relief.” ECF 709 at 17. Plaintiffs, in contrast, maintain that the
Agreement constitutes a consent decree because it “‘evinces the parties’ intention to make the
settlement agreement enforceable in federal court.’” ECF 720 at 12 (quoting Kelly v. Wengler,
822 F.3d 1085, 1095 (9th Cir. 2016)).
The Agreement is titled “Settlement Agreement.” But, the title is not dispositive; “it is
the reality, not the nomenclature which is at issue.” Aronov v. Napolitano, 562 F.3d 84, 90 (1st
Cir. 2009) (“We agree with other circuits that the formal label of ‘consent decree’ need not be
attached…”); Smyth ex rel. Smyth, 282 F.3d at 281 (“We will assume, then, that an order
containing an agreement reached by the parties may be functionally a consent decree…even if
not entitled as such.”). The question of whether a court order is the functional equivalent of a
consent decree may be determined by asking “whether the order contains the sort of judicial
involvement and actions inherent in a ‘court-ordered consent decree.’” Aronov, 562 F.3d at 90.
18

In my view, defendants’ position overlooks the long history of this case and the extent of
judicial involvement. Given the age of the case, all filings are not electronically available. But,
it is apparent that from at least 1993, there was a “Revised consolidated decree,” because then
Governor William Donald Schaefer sought to modify it.

See ECF 2.

Governor Parris

Glendening filed a memorandum in 1995 in support of a modified population plan. ECF 23.
And, Judge Motz held hearings on May 9, 1995 (see Docket) and on August 22, 1995, regarding
compliance with the court decree. See Docket. By Order of September 29, 1995 (ECF 39),
Judge Motz stayed the 1993 Revised Consolidated Decree. Then, by Order of October 31, 1997,
enforcement of the decree was suspended until further order of the court. ECF 60; ECF 74. The
litigation continued, however. Plaintiffs sought to reopen the case in 2002. ECF 76. The parties
subsequently entered into a “Consent Order” in August 2002, approved by the Court, to reopen
the case. ECF 84.
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. After the motion was fully briefed, Judge Motz advised the
parties that “the issue would best be framed by the defendants filing [a] renewed motion to
terminate” the 1993 Consent Decree. See ECF 148. Soon thereafter, in April 2004, defendants
filed a “Renewed Motion to Terminate [the 1993] Consent Decree.” ECF 148. On August 30,
2004, Judge Motz issued an Order (ECF 196) granting plaintiffs’ motion to restore the case to the
active docket and denying defendants’ motion to terminate the consent decree.
A lengthy period of discovery and settlement negotiations ensued. On September 15,
2009, plaintiffs filed a motion for preliminary approval of a partial settlement agreement. ECF
377.

Judge Motz issued an Order on November 10, 2009, granting approval.
19

ECF 382.

Plaintiffs moved for final approval of the partial settlement on March 1, 2010. ECF 387.
Following a hearing on March 12, 2010 (ECF 390), Judge Motz approved the Partial Settlement
Agreement by Order of March 17, 2010. ECF 394.
The Partial Settlement Agreement of 2009 (ECF 374-1, ¶¶ 6-7) and the Amendment to
the Partial Settlement Agreement in May 2012 (ECF 447-1) expressly state that they were not
consent decrees. Id. ¶¶ 1, 3. Nevertheless, in the long life of this case, there are numerous
filings that reflect the parties’ intent to involve the Court in monitoring and to make various
agreements enforceable by the Court.
In contrast to the agreements in 2009 and 2012, the 2015 Settlement Agreement does not
state that it is not a consent decree. Moreover, the 2015 Agreement created a mechanism by
which the Court “retain[ed] jurisdiction for the purpose of enforcing” the terms. ECF 541-2, ¶
52; see Smyth ex rel. Smyth, 282 F.3d at 280 (noting that “[e]ither incorporation of the terms of
the agreement or a separate provision retaining jurisdiction over the agreement will suffice for”
the purpose of making the terms of an agreement enforceable). Moreover, there are numerous
provisions in the Agreement that indicate the parties’ intent to render it enforceable in federal
court. See, e.g., ECF 541-2, ¶¶ 42, 49, 51, 52. And, the Agreement received the approval of the
Court. See Smyth ex rel. Smyth, 282 F.3d at 280. Moreover, since the Agreement was reached,
the parties have repeatedly come to the Court for one reason or another. Yet, the defense has
never suggested that judicial involvement was inappropriate.
Even if the Court considers the Settlement Agreement to be a consent decree, defendant
argues, the Court’s authority to enforce the Agreement is still limited under the PLRA. ECF 709
at 17-18. Defendants maintain that the Court cannot enforce the Settlement Agreement unless

20

plaintiffs establish a constitutional violation. ECF 709 at 18-22. According to defendants,
plaintiffs cannot prove such a violation. Id. at 21-26.
Defendants do not cite any relevant rules or authority to support their argument. And, it
is well established that courts have the authority to enforce consent orders, even when issued
pursuant to the PLRA. See Frew v. Hawkins, 540 U.S. 431, 440 (2004) (“Federal courts are not
reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree
may be enforced.”); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379 (1994)
(ancillary enforcement jurisdiction permits the Court to “manage its proceedings, vindicate its
authority, and effectuate its decrees”); System Fed'n No. 91 v. Wright, 364 U.S. 642, 647 (1961)
(explaining that injunctions “often require [ ] continuing supervision by the issuing court and
always a continuing willingness to apply its powers and processes on behalf of the party who
obtained that equitable relief”); Thompson, 404 F.3d at 833 (noting that “even if the district court
had declined to modify the retention-of-jurisdiction clause, the court's inherent authority over its
own judgment would have provided it with the continuing authority to enforce the Consent
Decree against HUD”); Smyth ex rel. Smyth, 282 F.3d at 282 (“A court's responsibility to ensure
that its orders are fair and lawful stamps an agreement that is made part of an order with judicial
imprimatur, and the continuing jurisdiction involved in the court's inherent power to protect and
effectuate its decrees entails judicial oversight of the agreement”); see also Parsons v. Ryan, 912
F.3d 486, 501 (9th Cir. 2018) (finding that district court was not required to make new findings
of a constitutional violation before enforcing the consent decree); Berger v. Heckler, 771 F.2d
1556, 1568 (2d Cir. 1985) (“Consent decrees are subject to continuing supervision and
enforcement by the court.”); Essex Cty. Jail Annex Inmates v. Treffinger, 18 F. Supp. 2d 445,

21

462 (D.N.J. 1998) (“As long as the underlying consent order remains valid—neither party has
made a 3626(b) motion to terminate—the court must be able to enforce it.”).
Therefore, “enforcement of a valid consent decree is not the kind of ‘prospective relief’
considered by § 3626(a).” Jones-El v. Berge, 374 F.3d 541, 545 (7th Cir. 2004) (noting that the
(citing Hallett v. Morgan, 296 F.3d 732, 743 (9th Cir. 2002)). Accordingly, I am satisfied that
the Court has the authority to enforce the terms of the Agreement.
Nevertheless, consent decrees are generally construed as contracts for purposes of
enforcement. Therefore, the Court cannot expand the defendants’ obligations beyond the terms
of the Agreement. Kokkonen, 511 U.S. at 377 (noting that federal courts “possess only that
power authorized by Constitution and statute, which is not to be expanded by judicial decree”);
Johnson v. Robinson, 987 F.2d 1043, 1046 (4th Cir. 1993) (“A federal district court may not use
its power of enforcing consent decrees to enlarge or diminish the duties on which the parties
have agreed and which the court has approved.” (citations omitted)).
Notably, the Court must determine whether plaintiffs’ request falls within the scope of
the Agreement that was approved by the Court. See Int'l Longshoremen's Ass'n, Loc. 333 v. Int'l
Longshoremen's Ass'n, AFL-CIO, 687 F. App'x 315, 326 (4th Cir. 2017) (“[T]he ‘scope of a
consent decree must be discerned within its four corners, and not by reference to what might
satisfy the purposes of one of the parties to it’ or by what ‘might have been written had the
plaintiff established his factual claims and legal theories in litigation.’”) (quoting Firefighters
Local Union No. 1784 v. Stotts, 467 U.S. 561, 574 (1984) (internal citation omitted)); Johnson,
987 F.3d at 1049; Willie M. v. Hunt, 657 F.2d 55, 60 (4th Cir. 1981) (“[T]he scope of a consent
decree must be discerned within the four corners, and not by reference to what might satisfy the
purposes of one of the parties to it.”).
22

As with a contract, “[w]hen interpreting a consent decree, words must be read in context,
each of its provisions being interpreted together with its other provisions. Absent ambiguity in
terms of the consent judgment, the intent of the parties must be ascertained solely from the
instrument itself and extrinsic evidence will not be admitted.” Gibson v. Allen, No. 2:78-2375,
2011 WL 2214919, at *6 (S.D. W. Va. June 3, 2011) (internal quotation and citation omitted).
But, “[t]he circumstances surrounding the formation of the consent order or any technical or
specialized meaning understood by the parties for words in the order may properly inform a
court while it yet adheres to the ‘four corners rule.’” Willie M., 657 F.2d at 60 (quoting United
States v. ITT Cont'l Baking Co., 420 U.S. 223, 238, (1975)).
Accordingly, the question for the Court is whether setting internal deadlines for the
defendants’ compliance, as well as ordering defendants to draw up a detailed plan and timeline
for compliance, would go beyond the four corners of the Settlement Agreement. A few
provisions of the Agreement are relevant to this analysis.
The Agreement provides that the “Commissioner shall implement any reforms necessary
to effectuate this Settlement Agreement. The implementation of this Settlement Agreement will
begin on the Effective Date; however, the parties recognize that some of the substantive
provisions of this Settlement Agreement will reasonably require time to implement, and the
parties agree that this Settlement Agreement shall be construed accordingly.” ECF 541-2, ¶ 28.
Additionally, the Agreement provides for termination of the Agreement upon the
Commissioner’s achievement of substantial compliance or four years from the effective date. Id.
¶ 42. However, other than these two provisions, the Agreement does not include any other
directions as to a timeline for progress or deadlines for compliance.

23

Also of relevance, and as discussed, the Agreement expressly provides for continued
enforcement by the Court. It says, id. ¶ 52: “The parties further request that…the Court…retain
jurisdiction for the purpose of enforcing this Settlement Agreement.” Given the fact that the
Court retains jurisdiction as to the case, in order to ensure compliance with the Agreement,
devising a method to obtain compliance does not necessarily extend beyond the four corners of
the Agreement. See Juan F. By & Through Lynch v. Weicker, 37 F.3d 874, 879 (2d Cir. 1994)
(“Rather than modifying the decree by increasing defendants' obligations, as defendants claim,
the court order in this case simply ensured compliance with the time frame originally established
by the manuals.”).
Given the pace of defendants’ progress, and the obligation of the Court to ensure
compliance with the Agreement, the parties are directed to submit a plan, jointly if possible, that
includes a timeline for defendants to achieve compliance with each provision of the Settlement
Agreement that was non-compliant as of the most recent Monitors’ reports. Thereafter, the Court
will establish deadlines for defendants to comply with the provisions.
C. Motion to Modify
Plaintiffs have asked the Court to modify the Settlement Agreement by extending the
termination deadline by two years, pursuant to Fed. R. Civ. P. 60(b)(5). ECF 702-1 at 22. Rule
60(b)(5) provides for relief from a final judgment or order when “the judgment has been
satisfied, released or discharged; it is based on an earlier judgment that has been released or
vacated; or applying it prospectively is no longer equitable[.]” Fed. R. Civ. Pro. 60(b)(5);
Thompson, 404 F.3d at 828-29 (“The court’s inherent authority to modify a consent decree or
other injunction is now encompassed in Rule 60(b)(5).”) (citing Plyler v. Evatt, 924 F.2d 1321,
1324 (4th Cir. 1991)).
24

A motion to modify a consent decree is governed by the standard set out by the Supreme
Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). See Thompson, 404 F.3d
821, 827-29 (relying on the standard set by Rufo). Under that standard, modification may be
appropriate if the party seeking modification demonstrates that “a significant change in
circumstances warrants revision of the decree.” Rufo, 502 U.S. at 383; see also Horne v. Flores,
557 U.S. 433 (2009) (“Rule 60(b)(5) may not be used to challenge the legal conclusions on
which a prior judgment or order rests, but the Rule provides a means by which a party can ask a
court to modify or vacate a judgment or order if ‘a significant change either in factual conditions
or in law’ renders continued enforcement ‘detrimental to the public interest.’”) (quoting Rufo,
502 U.S. at 384). “A ‘significant change either in factual conditions or in law’ can support a
requested modification.” Thompson, 404 F.3d at 827 (quoting Rufo, 502 U.S. at 383). Notably,
the question “is whether the parties actually anticipated the events giving rise to the modification
request; that the events were theoretically foreseeable does not foreclose a modification.”
Thompson, 404 F.3d at 828 (emphasis in original).
“If the moving party meets this standard, the court should [then] consider whether the
proposed modification is suitably tailored to the changed circumstance.” Rufo, 502 U.S. at 383.
Further, “once a party carries [the Rufo] burden, a court abuses its discretion ‘when it refuses to
modify an injunction or consent decree in light of such changes.’” Horne, 557 U.S. at 447
(quoting Agostini v. Felton, 521 U.S. 203, 215 (1997)).
Also of relevance here, in Rufo the Supreme Court endorsed a flexible approach to
consent decrees that result from institutional reform litigation. The Court said, id. at 380-81
(quoting Heath v. De Courcy, 888 F.2d 1105, 1109 (6th Cir. 1989)):
The experience of the District Courts and Courts of Appeals in implementing and
modifying such decrees has demonstrated that a flexible approach is often
25

essential to achieving the goals of reform litigation. The Courts of Appeals have
also observed that the public interest is a particularly significant reason for
applying a flexible modification standard in institutional reform litigation because
such decrees “reach beyond the parties involved directly in the suit and impact on
the public's right to the sound and efficient operation of its institutions.”
The Court emphasized, however, that while “a district court should exercise flexibility in
considering requests for modification of an institutional reform consent decree, it does not follow
that a modification will be warranted in all circumstances.” Id. at 383.
Courts have consistently held that the failure of substantial compliance with the terms of
a consent decree can qualify as a significant change in circumstances justifying modification. See
Thompson, 404 F.3d at 829 (affirming district court’s conclusions that defendants’ “nearly
complete failure to comply with their obligations was a sufficient change of circumstances to
warrant modification of the Consent Decree”); Labor/Cmty. Strategy Center v. L.A. Cnty. Metro.
Transp. Auth., 564 F.3d 1115, 1120–21 (9th Cir. 2009) (noting that “failure of substantial
compliance with the terms of a consent decree can qualify as a significant change in
circumstances that would justify the decree's temporal extension”); Holland v. N.J. Dept. of
Corr., 246 F.3d 267, 284 (3d Cir. 2001) (“Courts have extended a decree or parts of a decree
when ... one party was in substantial non-compliance with the decree.”); David C. v. Leavitt, 242
F.3d 1206, 1213 (10th Cir. 2001) (affirming district court's decision to modify consent decree by
extending its enforcement period because of defendant's significant non-compliance with the
terms of the decree: “[I]t would defy logic for Appellees to agree to include the four-year
Termination Provision in the Agreement if they actually foresaw that Utah would not be in
substantial compliance with the terms of the Agreement at the end of the four-year period.”);
Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir. 1994) (upholding
extension of decree where district court found that “the goals of the decree ‘will be fulfilled in a
26

short period of time and this action will then come to an end.’”). And, it is undisputed here that
there has been a failure of substantial compliance with respect to some of the terms of the
Settlement Agreement.
But, as with the enforcement capability, the fact that the Court has the power to modify
the Agreement is only part of the inquiry; whether the Court should use its discretionary power
to modify is a separate question. The Court must determine if the plaintiffs’ proposed extension
“is tailored to resolve the problems created by the change in circumstances.” Rufo, 502 U.S. at
391. And, in doing so, “there is no doubt that the court must determine whether the proposed
modification furthers the purpose of the consent decree.” David C., 13 F. Supp. 2d at 1211
(citing Kozlowski v. Coughlin, 871 F.2d 241, 247–8 (2nd Cir. 1989) (“The analysis must identify
the essential purpose or purposes of the decree in question and weigh the impact of the proposed
modification on that ultimate objective.”); Lorain NAACP v. Lorain Board of Education, 979
F.2d 1141, 1148 (6th Cir. 1992) (“The modification of an institutional consent decree will be
upheld ‘if it furthers the original purpose of the decree in a more efficient way.’”)).
Defendants argue that the Court is barred from modifying the Agreement because a
“unilateral amendment was not part of the Agreement.” ECF 709 at 26-27 (citing ECF 541-2, ¶
53). But, a consent decree’s terms cannot restrict a Court’s inherent power and ability to modify
its own order. See Thompson, 404 F.3d at 832 n.6 (“Issues of interpretation and enforcement of a
consent decree typically are subject to traditional rules of contract interpretation, and the district
court's authority is thus constrained by the language of the decree.... A court's inherent power to
modify a consent decree, however, is not circumscribed by the language of the decree.”)
(emphasis in original); David C., 242 F.3d at 1210-11 (“Contrary to Utah's assertions, a court's
equitable power to modify its own order in the face of changed circumstances is an inherent
27

judicial power that cannot be limited simply because an agreement by the parties purports to do
so.... To hold otherwise would allow the parties, by the terms of their agreement, to divest a court
of its equitable power or significantly constrain that power by dictating its parameters.”); South
v. Rowe, 759 F.2d 610, 613 (7th Cir. 1985) (“Of course, the parties could not agree to restrict the
court's equitable powers to modify its judgment enforcing the consent decree ... in light of
‘changed circumstances.’”), abrogated on other grounds by Rufo, 502 U.S. 106.
Further, defendants argue that plaintiffs must meet three or four threshold conditions
before the Court can consider modification under Rule 60(b). ECF 709 at 27-28. However, the
cases on which defendants rely to support this interpretation of the modification standard are
inapplicable here; they do not involve Rule 60(b)(5) or the modification of consent decrees. See,
e.g., National Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993) (vacating
judgment against a defendant under Rule 60(b)(6)); Park Corp. v. Lexington Ins. Co., 812 F.2d
894, 896 (4th Cir. 1987) (affirming district court’s denial of defendant’s motion for relief from
default judgment under Rule 60(b)).
Significantly, without objection, defendants previously agreed to a modification of the
Agreement, by way of a two-year extension of its terms. In particular, in 2018, in response to the
plaintiffs’ motion to enforce the Agreement (ECF 583), defendants agreed to a two-year
extension to give them an opportunity to achieve compliance with the medical and mental health
provisions of the Agreement. ECF 616 (Defendants’ response to plaintiffs’ motion to enforce,
dated 12/13/2018) at 20. The Court approved that extension. ECF 642.
It is not uncommon for a court to modify a consent decree by extending the termination
date when a party has failed to substantially comply. In Thompson, 404 F.3d 821, for example,
the Fourth Circuit, applying the Rufo standard, found that the magnitude of a party's failure to
28

comply with the terms of the consent decree was a significant change in circumstances,
warranting modification of the decree. The Thompson Court noted that the defendants were
“woefully behind schedule with regard to many provisions of the Consent Decree” and plaintiffs
had not anticipated the “exceptional magnitude” of non-compliance. 404 F.3d at 825, 828-29.
Thus, the Fourth Circuit affirmed the district court’s decision to extend its jurisdiction over the
defendants, concluding that the modification ensured that the decree could be efficiently
enforced. Id. at 831; see also, e.g., Labor/Cmty. Strategy Center, 564 F.3d at 1120–21; David C.,
242 F.3d at 1212–13 (district court acted appropriately in granting “relief from the four-year
Termination Provision by extending the term of the Agreement” “to allow [the defendant] to
fulfill the very obligations it voluntarily undertook when it entered into the Agreement”);
Vanguards of Cleveland, 23 F.3d at 1019–20 (affirming extension of consent decree where the
expectations underlying the decree had failed to materialize).
The Settlement Agreement is aimed at addressing conditions of confinement at BCBIC,
including medical and mental health care of the inmates. Plaintiffs contend that because it is
clear that defendants will not be in compliance with the Agreement by the current expiration date
of June 2022, an extension “will give Plaintiffs at least part of the benefit of their bargain, while
giving Defendants an incentive to comply as soon as possible.” ECF 702-1 at 22.
It cannot be disputed that the COVID-19 pandemic created an unforeseen and significant
change in circumstances. Indeed, since at least March 2020, life as we have known it virtually
came to a halt.

Only recently have we seen a return to some semblance of normalcy.

Undoubtedly, issues as to COVID-19 hampered defendants’ compliance because many in the
work force were unable to provide services. And, defendants also had to focus their efforts on
more immediate health concerns pertaining to detainees. See ECF 704 (noting that the COVID29

19 pandemic has had a serious impact on mental health services within BCBIC); id. at 11 (“It is
anticipated that the impact of COVID-19 will continue for an extended period of time….”); ECF
702-7 at 5 (noting that the COVID-19 pandemic “has affected operations” inside BCBIC). Given
the pace with which progress is currently being made, as well as the additional challenges that
have followed due to the COVID-19 pandemic, extending the Agreement by 18 months is
suitably tailored to the change in circumstance. 6
Because of defendants’ failure to achieve compliance, the Court is convinced that it must
retain jurisdiction to protect the purpose of the Agreement. But, as plaintiffs observe, the
termination provision in the Settlement Agreement includes a proviso that defendants could
achieve termination prior to the expiration date by reaching substantial compliance on all the
substantive provisions. ECF 541-2, ¶ 42.
III.

Conclusion

For the reasons stated, the Court shall grant the Motion, in part. In particular, the Court
shall extend the Agreement by 18 months, with a new expiration date of December 22, 2023.
Within 30 days of the docketing of this Order, the parties are directed to submit a proposal, joint
if possible, to include a timeline for defendants’ compliance with the remaining provisions of the
Agreement.
An Order follows, consistent with this Memorandum Opinion.

Date: May 20, 2021

6

/s/
Ellen Lipton Hollander
United States District Judge

The extension roughly approximates the length of time that COVID-19 has affected our

society.
30