Geissler v. Sterling et al
Filing
168
OPINION AND ORDER granting 149 Motion for Partial Settlement; granting 166 Motion to Substitute Documents Signed by Honorable Margaret B Seymour on 8/5/2019.(mdea )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
RUSSELL GEISSLER, BERNARD
BAGLEY, AND WILLIE JAMES
JACKSON, individually and on behalf of
others similarly situated,
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
BRYAN P. STIRLING, Director of the South )
Carolina Department of Corrections (SCDC), in )
his official capacity; and JOHN B. MCREE,
)
M.D., Division Director of Health and
)
Professional Services for SCDC, in his individual )
capacity,
)
)
Defendants.
)
)
Case No.: 4:17-cv-01746-MBS
OPINION AND ORDER
Plaintiffs Russell Geissler, Bernard Bagley, and Willie James Jackson individually and as
class representatives for all those similarly situated bring this action pursuant to Fed. R. Civ. P. 23
against Defendants Bryan P. Stirling and John B. McRee, M.D., alleging that the South Carolina
Department of Corrections (“SCDC”) has failed to screen and adequately treat inmates for chronic
Hepatitis C (“HCV”).1 Plaintiffs, who are in SCDC custody, assert violations of the Eighth
Amendment pursuant to 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, as
amended, 42 U.S.C. §§ 12131 et seq., and the Rehabilitation Act, as amended, 29 U.S.C. §§ 791
et seq.. Plaintiffs seek injunctive and declaratory relief, and Plaintiff Geissler seeks compensatory
1
Plaintiff Russell Geissler initiated this action on June 30, 2017 with the pro se filing of a
prisoner complaint. ECF No. 1. The court granted Plaintiff Geissler leave to proceed in forma
pauperis, ECF No. 9, and ultimately granted his motion for appointment of counsel, ECF No. 72.
Counsel for Plaintiff Geissler entered his appearance on January 10, 2018. ECF No. 75. On
August 21, 2018, Plaintiffs sought and received leave to file a third amended complaint
(“Complaint”), which remains the operative pleading. ECF No. 108.
and punitive damages. ECF No. 108 at 3. The court exercises federal subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.
BACKGROUND
The claims Plaintiffs assert and the relief they seek concern SCDC’s alleged failure to (1)
properly test prisoners in its custody for HCV and (2) properly treat prisoners in its custody who
are afflicted with HCV. This Order resolves the claims pertaining to SCDC’s alleged failure to
properly test prisoners for HCV (“Testing Claims”), and has no bearing on the claims related to
SCDC’s policies and practices for treating inmates for HCV, or on Plaintiff Geissler’s individual
claims.
Plaintiffs assert that the Centers for Disease Control (“CDC”) recommend that HCV testing
be administered in a two-step process. ECF No. 108 at ¶ 42; ECF No. 149 at 2. The first step
determines whether the HCV antibody is present. If the HCV antibody is present, the second step
facilitates nucleic acid testing to determine if the HCV infection is current. Id. The Parties
engaged in extensive written discovery and some oral discovery and, as a result of those efforts,
SCDC acknowledged that it had not administered the recommended two-step process for all
inmates whom SCDC had tested for HCV antibodies. ECF No. 149 at 3.
On December 4, 2018, the Parties filed a joint motion for preliminary approval of a partial
consent decree to resolve the Testing Claims; the Parties subsequently filed a Revised Partial
Consent Decree. On December 5, 2018, the court held a status conference on the joint motion,
ECF No. 138; and, on December 6, 2018, the court granted preliminary certification to a class
consisting of the following persons: “All current and future inmates in SCDC custody, with the
exception of inmates who have already been diagnosed with chronic HCV,” (“Testing Class”).2
2
Hereafter, any reference to “class” is a reference to the Testing Class only.
2
ECF No. 140. The court also preliminarily certified Plaintiffs Geissler and Bagley as Class
Representatives, and preliminarily approved the Revised Partial Consent Decree as well as the
notice and procedure for distributing the notice to class members. ECF No. 142. The court set a
fairness hearing for February 12, 2019. ECF No. 143.
Prior to the fairness hearing, the Parties filed a Joint Motion for Final Approval of the
Revised Partial Consent Decree (“Joint Motion for Approval”).
ECF No. 149.
Counsel
represented in the Joint Motion for Approval that pursuant to the court’s order of preliminary
approval, counsel posted the Revised Partial Consent Decree on www.SCHepC.com on December
19, 2018, and provided all Circuit Public Defenders with notice of the Revised Partial Consent
Decree on January 11, 2019. ECF No. 149-2. SCDC posted notice of the Revised Partial Consent
Decree in every housing unit of every SCDC institution and in SCDC’s intake facilities, and
additionally made information regarding the Revised Partial Consent Decree available on the
SCDC website and in the prison libraries.
ECF No. 149-3. Counsel informed the court that as
of February 5, 2018, they had received more than thirty responses to the notices. Counsel
represented that “most of the[] responses have sought additional information or raised concerns
regarding treatment,” and “[i]nasmuch as the Revised Partial Consent Decree addresses only the
Testing Claims, these responses are not being interpreted by counsel for either side as objections
to the proposed settlement of the Testing Claims.” ECF No. 149 at 6. Counsel stated they
nonetheless “noted the concerns stated in the numerous letters submitted and are responding to all
correspondence in an effort to further inform the concerned individuals that settlement discussions
regarding the Treatment Issue have commenced and are ongoing.” Id.
The Joint Motion for Approval states that SCDC agrees to provide Class Members with
testing for chronic HCV in accordance with CDC guidelines within eighteen months of the court’s
3
approval. ECF No. 149 at 1-2. The Joint Motion for Approval represents that the Parties “have
fully exhausted discovery on the Testing Claims,” id. at 7; and states that as of February 5, 2019,
SCDC had taken the following actions relevant to the Testing Class: (1) provided notice of the
terms of the Revised Partial Consent Decree to current SCDC inmates by posting the courtapproved notice in each prison; (2) implemented the CDC’s recommended two-step process for
diagnosing chronic HCV; (3) tested Plaintiffs Geissler and Bagley for chronic HCV according to
the CDC guidelines; (4) offered opt-out testing to 533 inmates and tested 442 inmates, 52 of whom
(11.7 percent) tested positive for chronic HCV; (5) provided Plaintiffs’ counsel with information
about the opt-out process as well as the test results and opt-out forms; and (6) provided Governor
McMaster and the state legislature with accurate estimates regarding the scope of chronic HCV in
South Carolina’s prison system, id. at 4 (citing Jan. 24, 2019 Letters from Defendant Stirling to
the Honorable Harvey S. Peeler, Jr., President of the South Carolina Senate and the Honorable
James H. Lucas, Speaker of the South Carolina House of Representatives, ECF No. 149-1). The
Joint Motion for Approval further states that “[b]ased on the sample of 442 inmates that have
already been tested, SCDC estimates that approximately 2,182 inmates are likely to have HCV.”
Id. at 10. Counsel assert that “[t]he Revised Partial Consent Decree will allow SCDC to ascertain
the precise number of inmates with chronic HCV and hopefully help prevent the spread of the
disease in the prison population and the general public.” Id. Also prior to the fairness hearing,
Plaintiffs filed an unopposed motion to appoint class counsel, ECF No. 152, and filed a
supplemental memorandum to the Joint Motion for Approval to address the requirements of 18
U.S.C. § 3626. ECF No. 153.
On February 12, 2019, the court held a fairness hearing pursuant to Rule 23(e)(2) to
determine whether the within action satisfies the applicable prerequisites for class action treatment
4
and whether the proposed Revised Partial Consent Decree is fundamentally fair, reasonable, and
adequate, and should be approved by the court. The court certified Plaintiffs’ counsel as Class
Counsel and heard argument from the Parties. Mr. Bagley, a Class Representative, appeared via
videoconference and informed the court that he understood the terms of the settlement and had no
objection. Mr. Bagley voiced concern, however, regarding the timeline that would govern SCDC’s
testing of inmates for HCV; specifically, he highlighted the likelihood that SCDC would release
class members from its custody before it could test those members for HCV.3 The court expressed
a similar concern, and queried counsel as to whether the Parties should redefine the Testing Class.
The court also inquired as to whether any other class members were in attendance who wished to
object to or be excluded from the settlement; no other class members were present or otherwise
represented.
On July 22, 2019, the Parties filed a Joint Motion to Substitute Filing, asking to substitute
a Partial Settlement Agreement in place of the proposed Revised Partial Consent Decree. ECF
No. 166. The Parties represent that the Partial Settlement Agreement and proposed Revised Partial
Consent Decree are “substantively identical” and that “no class member will be prejudiced by this
substitution of documents,” and assert that “because there is no substantive change between the
two documents . . . there is no need to repeat the notice period.” Id. at 2.4 The court agrees.
Accordingly, the court will grant the Joint Motion to Substitute Filing and apply the Rule 23(e)
fairness analysis to the Partial Settlement Agreement.
3
Indeed, during the notice period counsel received letters from two prisoners who expected to
soon be released from SCDC custody.
4
The Parties attached the Partial Settlement Agreement and a redlined version of the Revised
Partial Consent Decree to the Joint Motion to Substitute Filing. ECF Nos. 166-1, 166-2.
5
DISCUSSION
Rule 23(b)(2) provides that a class action may be maintained if Rule 23(a) is satisfied and if
“the party opposing the class has acted or refused to act on grounds that apply generally to the class,
so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as
a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(a) states that one or more members of a class may sue
as representative parties on behalf of all members only if the following criteria are satisfied: (1) the
class is so numerous that joinder of all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the
interests of the class. Fed. R. Civ. P. 23(a).
With respect to the type of class certification Plaintiffs seek, Rule 23(b)(2) certification is
reserved for cases where broad, class-wide injunctive or declaratory relief is necessary to redress a
group-wide injury.
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011) (“Rule
23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each
member of the class”); Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 329-30 (4th Cir. 2006).
A class action is properly certified under Rule 23(b)(2) where the claims seek to define the
relationship between the defendant and a group uniformly situated in relation to the defendant, such
as where litigants seek institutional reform in the form of injunctive relief. See Dukes, 131 S. Ct. at
2557; Thorn, 445 F.3d at 329-30.
The Parties seek approval of the Partial Settlement Agreement as settlement of the Testing
Claims. The claims asserted by a certified class may be settled only with the court’s approval. Fed.
R. Civ. P. 23(e). Where the proposal would bind class members, the court may approve it only after
a hearing and only on finding that the proposed settlement is fair, reasonable, and adequate. Fed. R.
6
Civ. P. 23(e)(2). To determine whether the proposal is fair, the court must consider (i) the posture
of the case at the time of settlement, (ii) the extent of discovery that has been conducted, (iii) the
circumstances surrounding the negotiations, and (iv) the experience of counsel. See In re Jiffy Lube
Securities Litig., 927 F.2d 155, 158-59 (4th Cir. 1991). “A proposed class action settlement is
considered presumptively fair where there is no evidence of collusion and the parties, through capable
counsel, have engaged in arm’s length negotiations.” Harris v. McCrackin, No. 2:03-3845-23, 2006
WL 1897038, at *5 (D.S.C. July 10, 2006) (citing South Carolina Nat’l Bank v. Stone, 139 F.R.D.
335, 339 (D.S.C. 1991)). In evaluating the adequacy of a class settlement, the court should consider
the following: (i) the relative strength of the plaintiffs’ case on the merits; (ii) the existence of any
difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial;
(iii) the anticipated duration and expense of additional litigation; (iv) the solvency of the
defendants and the likelihood of recovery of a litigated judgment; and (v) the degree of opposition
to the settlement. In re Jiffy Lube Securities Litig., 927 F.2d at 159. The court must also inquire
into whether the parties have entered into an agreement made in connection with the proposal.
Fed. R. Civ. P. 23(e)(3).
The court has considered the comments offered by counsel during the fairness hearing, and
has read and considered the Partial Settlement Agreement and the record as a whole and finds and
orders as follows:
1.
CLASS CERTIFICATION – As discussed during the fairness hearing and
demonstrated in the Parties’ motions and supplemental filings, the Rule 23(a) criteria are met here.
Pursuant to Rule 23(b)(2), final certification is appropriate because the relief Plaintiffs seek is an
injunction regarding SCDC’s policies and practices with respect to how SCDC tests the inmates in its
custody for HCV. In certifying a class under Rule 23(b)(2), the court must be satisfied as to its ability
7
to prescribe a uniform standard of conduct for the defendant that can be applied across the class; less
important is whether the court can provide redress for injuries sustained by individual class members.
Here, no class member has asked to opt-out of the Testing Class, and the Parties have not sought to
include the opt-out right in the conditions of the Class. In addition, the Testing Claims seek only
declaratory and injunctive relief; settlement of those claims does not prevent a class member from
pursuing monetary damages. Class members who are released from SCDC custody before they can
undergo testing for HCV will not receive the benefit of their class membership, but class membership
does not require members to forgo any right associated with the Testing Claims.5 The court is satisfied
that the Testing Claims seek relief for conduct that can be enjoined or declared unlawful as to all
members of the Testing Class, Dukes, 131 S. Ct. at 2558, and that membership in the Testing Class
will not pose due process concerns even for those members who may not receive the benefit of the
settlement. See Rice v. City of Philadelphia, 66 F.R.D. 17, 19 (E.D. Pa. 1974) (“[T]he precise
definition of the [(b)(2)] class is relatively unimportant. If relief is granted to the plaintiff class, the
defendants are legally obligated to comply, and it is usually unnecessary to define with precision the
persons entitled to enforce compliance . . .”). Pursuant to Federal Rule of Civil Procedure 23(b)(2),
the court grants final certification of the within action as a class action for purposes of settlement of
the Testing Claims only and defines the “Testing Class” as:
All current and future inmates in SCDC custody, with the exception of inmates who
have already been diagnosed with chronic HCV.
5
Pursuant to the Partial Settlement Agreement, class members release claims against Defendants
for injunctive relief to receive HCV testing. The only class members who would not receive
testing for HCV, and therefore might wish to bring such claims, are those individuals whom
SCDC releases from custody before it can administer the tests. Any such claim for injunctive
relief by an individual who is no longer in SCDC custody would likely be moot. See, e.g.,
Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) (“[A]s a general rule, a prisoner’s
transfer or release from a particular prison moots his claims for injunctive and declaratory relief
with respect to his incarceration there.”).
8
2.
CLASS REPRESENTATIVE AND CLASS COUNSEL APPOINTMENT –
Pursuant to Rule 23(g), the court grants final certification of Plaintiffs Russell Geissler and Bernard
Bagley as the Class Representatives and further certifies Yarborough Applegate LLC and Guttman,
Buschner & Brooks PLLC as Class Counsel.
3.
NOTICES – Proper notice is “an elementary and fundamental requirement of due
process.” Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d. 140, 146 (4th Cir. 2014) (citation
omitted). Notice satisfies due process where it either (1) “is in itself reasonably certain to inform
those affected,” or (2) “where conditions do not reasonably permit such notice, . . . the form chosen
is not substantially less likely to bring home notice than other of the feasible and customary
substitutes.” Id. (citation omitted). The form and method for notifying class members of the Revised
Partial Consent Decree and its terms and conditions was in conformity with this court’s order of
preliminary approval. The court is satisfied that the form and method for notifying class members of
the Revised Partial Consent Decree meets the requirements of due process and constitutes the best
notice practicable under the circumstances. The court agrees that the Partial Settlement Agreement
is substantively identical to the Revised Partial Consent Decree and therefore no further notice period
is necessary.
4.
CONSENT DECREES RELATING TO PRISON CONDITIONS – Pursuant to 18
U.S.C. § 3626(a), the court finds that the Partial Settlement Agreement is narrowly drawn, extends
no further than is necessary to correct the alleged constitutional violations, and is the least intrusive
means necessary to correct the alleged constitutional violations.
5.
FAIRNESS AND ADEQUACY – The court finds that settlement of the Testing
Claims, on the terms and conditions set forth in the Partial Settlement Agreement, is in all respects
fundamentally fair, reasonable, adequate, and in the best interest of the class members. In so finding,
9
the court has considered the specific public interest at stake and the strength of Plaintiffs’ case, along
with the posture of the litigation, the complexity, expense, and probable duration of further litigation,
the circumstances surrounding the Parties’ negotiations, the experience of counsel, and SCDC’s
solvency.6 See In re Jiffy Lube Securities Litig., 927 F.2d at 158-59. Specifically, the Parties have
exhausted discovery on the Testing Claims and are well-apprised of the merits of the case. Further
litigation would be expensive and time consuming and would not likely yield a result more favorable
than the Partial Settlement Agreement. As the Parties state in their Joint Motion for Approval, “[t]he
purpose of the proposed settlement is to provide Plaintiffs with the injunctive relief they requested:
providing SCDC inmates with testing for chronic HCV that meets the medical standard of care
asserted by Plaintiffs.”7 ECF No. 149 at 7. Additionally, there is no evidence or suggestion of bad
faith or collusion, and counsel represented during the fairness hearing that the Partial Settlement
Agreement is the result of settlement negotiations conducted at arm’s length and in good faith. See
Kirven v. Central States Health & Life Co. of Omaha, C/A No. 3:11–2149–MBS, 2015 WL 1314086,
at *5 (D.S.C. Mar. 23, 2015) (noting “[a]bsent evidence to the contrary, the court may presume that
settlement negotiations were conducted in good faith and that the resulting agreement was reached
without collusion”) (citing Muhammad v. Nat'l City Mortg., Inc., C/A No. 2:070428, 2008 WL
6
The Parties state in the Joint Motion for Approval that SCDC’s solvency and the likelihood of
recovery of a litigated judgment are not at issue because Plaintiffs seek only injunctive relief.
ECF No. 149 at 9. However, the HCV testing that Defendants agree to undertake necessarily
requires an expenditure of funds. Indeed, the Parties include in the Partial Settlement Agreement
the provision that, for the purpose of seeking remedial action against Defendants, “an individual
shall not be deemed to have acted in bad faith if budgetary constraints are the reason for his or
her failure to satisfy the terms of the Testing Agreement, so long as he or she has made good
faith efforts to obtain the necessary funding from all potential sources.” ECF No. 166-1 at 7. The
expense of testing for HCV notwithstanding, the Parties have not indicated in their papers and
did not suggest during the fairness hearing that SCDC does not have or would not be able to
procure the necessary funding to carry out the agreed upon testing.
7
The Parties represent in the Joint Motion for Approval that Plaintiffs are “foregoing any
declarative relief related to the Testing Claims.” ECF No. 149 at 7.
10
5377783, at *4 (S.D.W. Va. Dec. 19, 2008) (further citation omitted)). With respect to Class Counsel,
the inquiry into the adequacy of legal counsel focuses on whether counsel is competent, dedicated,
qualified, and experienced enough to conduct the litigation and whether there is an assurance of
vigorous prosecution. In re Serzone Prod. Liab. Litig., 231 F.R.D. 221, 239 (S.D.W. Va. 2005)
(citation omitted). As discussed at the fairness hearing, the court finds that Class Counsel meet these
criteria. Furthermore, Mr. Bagley informed the court at the fairness hearing that he was satisfied with
the representation provided by Class Counsel, and no class member has contested the appointment of
Class Counsel.
The court has also considered the concerns voiced by Mr. Bagley and two other class members
regarding the likelihood that certain class members will be released from custody before SCDC can
test them for HCV. The Parties assert in the Joint Motion for Approval, and represented during the
fairness hearing, that pursuant to the Partial Settlement Agreement over 18,000 inmates will be tested
for HCV. The Parties further represent that due to the logistical difficulties involved in administering
the test in a correctional setting, SCDC will test inmates according to facility rather than according to
individual release dates. The Parties further represent that SCDC has nonetheless “set an aggressive
testing schedule and is hopeful that it will be able to complete the testing for all currently incarcerated
inmates by September 2019.” ECF No. 149 at 9. The court understands and is sympathetic to the
concern that as SCDC works to administer the test facility-by-facility, some class members will be
released from custody before SCDC can test them for HCV. However, to the extent that concern
constitutes opposition to the settlement, such opposition is outweighed by the benefit the Testing
Class and the public will derive from the Partial Settlement Agreement.8 In addition, to the extent
8
The Joint Motion for Approval posits that an estimated one percent “of the noninmate [sic]
population has chronic HCV,” and that the number rises to an estimated 17 percent “for the
inmate population.” ECF No. 149 at 10 (citing ECF No. 136-2, Teianhua He, M.D. et al.,
11
that concern could be interpreted as an objection to the Partial Settlement Agreement, the court
overrules the objection.
Finally, counsel represented during the fairness hearing that the Parties have entered into no
other agreement with respect to the Partial Settlement Agreement. Accordingly, for these reasons,
the court finds the Partial Settlement Agreement to be fair, adequate, and reasonable.
6.
SETTLEMENT TERMS – The Partial Settlement Agreement is granted final
approval and shall be consummated in accordance with the terms and provisions thereof, except as
may be amended by any order issued by this court. The Parties are hereby directed to perform the
terms of the Partial Settlement Agreement. All class members who were provided notice of the Partial
Settlement Agreement are bound by the terms of it.
7.
ATTORNEY FEES – Plaintiffs’ attorneys have not sought fees at this time.
8.
FUTURE ACTIONS PROHIBITED – The court hereby permanently enjoins and
restrains all class members from commencing or prosecuting any action, suit, claim, or demand
against Defendants for declaratory or injunctive relief based on the Testing Claims.
9.
NO ADMISSION OF LIABILITY – This order is not, and will not, be construed as
an admission by Defendants of any liability or wrongdoing in this or in any other proceeding.
10.
CONTINUING JURISDICTION OVER SETTLEMENT – The court hereby retains
continuing and exclusive jurisdiction over the Parties and all matters relating to the within action and
Prevention of Hepatitis C by Screening and Treatment in U.S. Prisons, Annals of Internal
Medicine (Nov. 24, 2015) (SCDC Documents for Informal Discovery Response 000001)). The
Parties explain that “[a]s individuals move in and out of the prison system and are unaware of
their HCV status, they can transmit the disease to others,” and that “[s]tudies have suggested that
providing opt-out testing to inmates can help reduce the transmission of the disease—and deaths
related to the disease—outside of the prison.” Id.
12
Partial Settlement Agreement, including the administration, interpretation, construction, effectuation,
enforcement, and consummation of the settlement and this order, and attorneys’ fees.
CONCLUSION
The Joint Motion to Substitute Filing, ECF No. 166, is GRANTED and the Partial Settlement
Agreement, ECF No. 166-1, is substituted for the Revised Partial Consent Decree. The Joint Motion
for Final Approval, ECF No. 149, is GRANTED and the Partial Settlement Agreement, ECF No.
166-1, is APPROVED.
IT IS SO ORDERED.
Charleston, South Carolina
August 5, 2019
/s/Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?