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REYNOLDS v. WAGNER

August 13, 1996

RICHARD R. REYNOLDS, JR., DAVID BORRELL, REYNALDO FELIX, JULIO ARACHO, ROBERT SANTILLO, KURT MIHALSKI, LUIS SANTIAGO-ALVARADO, JESUS DE LEON, AND THESE SIMILARLY SITUATED INDIVIDUALS, Plaintiffs,
v.
WARDEN GEORGE WAGNER, Director of Penna. Institutional Health Services Inc., CARL HOFFMAN, JR., Supervisor of Penna. Institutional Health Services and CAROL COLBURN, Defendants.



The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 August 13, 1996

 Several inmates at Berks County Prison instituted this class action on November 9, 1994, alleging that the Prison's policy of charging inmates for medical care deprives Berks County Prison inmates of their civil rights. Plaintiffs bring suit under 42 U.S.C. §§ 1983, 1988 and the Eighth Amendment of the United States Constitution. Neither party requested a trial by jury.

 Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343. Venue is proper under 28 U.S.C. § 1391(b).

 I. BACKGROUND

 Plaintiffs instituted the instant action on November 9, 1994, alleging constitutional violations. On January 13, 1995, following a telephonic conference and the agreement of all counsel on the record, we issued an Order consolidating the trial on the merits with the hearing on the preliminary injunction pursuant to Fed. R. Civ. P. 65(a)(2). On February 9, 1995, we granted Plaintiffs' motion for class certification. We certified a class pursuant to Fed. R. Civ. P. 23(b)(2) consisting of all indigent persons who have been, are, or will be incarcerated in Berks County Prison and who have been, are, or will be subjected to the challenged medical services fee policy.

 On August 24, 1995, we issued an Order bifurcating liability and damages. On April 25, 1996, we approved a stipulation by counsel to dismiss with prejudice all claims against Defendants Carl A. Hoffman, Jr., and Carol Colburn. Extensive discovery was taken and forms part of the record before us. *fn1" On May 8, 1996, we held a one day non-jury trial and we now decide the issues of constitutional liability raised at trial.

 We first make the following findings of fact pursuant to Fed. R. Civ. P. 52(a).

 II. FINDINGS OF FACT

 1. Plaintiffs Richard R. Reynolds, David Borrell, Robert Santillo, Kurt Mihalski, Jesus DeLeon, and Luis Santiago-Alvarado are all adult individuals currently incarcerated at Berks County Prison. Complaint at PP 11, 14; Amended Complaint at PP 2-5; Defendant Wagner's Answer to Amended Complaint (hereafter "Answer to Amended Complaint") at PP 11, 14; Defendant Wagner's Answer to Amended Complaint (hereafter "Answer to Amended Complaint") at PP 2-5. *fn2"

 2. Defendant George Wagner is the Warden of Berks County Prison. Complaint at P 7; Answer to Complaint at P 7.

 3. Berks County Prison is a governmental entity which detains pre-trial detainees and sentenced prisoners.

 4. The average daily population of Berks County Prison is about 775 inmates. Wagner, Tr. 142. Between 100 and 120 are federal inmates are housed under contract with the United States government. Wagner, Dep. p. 24. Federal inmates housed at the Prison are excluded from the fee for service policy at issue in the instant litigation. Wagner, Dep. p. 24. The other approximate 550 inmates are incarcerated at the Prison pursuant to state law. Wagner, Dep. p. 24.

 5. Approximately 35% of the inmate population is Hispanic, and approximately 10% of the inmate population speaks only Spanish. Wagner, Dep. p. 17.

 6. Berks County Prison established and implemented the medical fee for service policy in July, 1993. Wagner, Dep. p.9.

 7. Although the fee system may generate some limited revenue, the primary purpose of the system is to instill inmate responsibility and discourage abuse of sick call. The primary purpose is not to generate revenue. Wagner, Tr. p. 139; Wagner, Dep. p. 10-11.

 8. The persons who developed the fee for service program viewed it as an outgrowth of the direct supervision philosophy adopted for the Berks County Prison. Wagner, Tr. p. 138; Wagner, Dep. p. 8. This direct supervision philosophy stresses giving inmates more choice in their daily lives in an attempt to achieve more responsibility from the inmates in return. Wagner, Dep. p. 6-7.

 9. The fee for service program assesses inmates fees for various medical services. These fees are set forth in section 3.6.3 of the Inmate Handbook which provides as follows:

 
You will be charged a $ 3.00 fee for a medical evaluation (sick call) by nursing staff.
 
There is no charge for prescription medication.
 
The medical department will maintain a supply of over the counter drugs and issue appropriate quantities to you, if deemed necessary for treatment. Over the counter medication is also available through the commissary and can be purchased at the prevailing commissary rate.
 
If you are referred to the Doctor by the nursing staff, after initial diagnosis at "sick call", you will not be charged a fee to see the Doctor.
 
If you are not referred to the doctor after initial screening by the nursing staff, but request to see the doctor anyway, you will be charged a $ 5.00 fee for this service. If the doctor determines that you should have been referred at the initial screening, the $ 5.00 fee will be waived.

 10. Section 3.6.4 of the Inmate Handbook sets forth exceptions to the fee for medical service policy as follows:

 
"Initial commitment medical screening, psychiatric services and emergency services are free.
 
There is no fee for treatment of chronic illnesses (example: dressing changes, colostomy changes, diabetes, hypertension, or AIDS related syndrome).
 
Fees for emergencies are determined by the medical department supervisor; some examples are listed below (All accidents do not qualify as emergencies):
 
A twisted ankle from activities in the recreation yard is not an emergency and is a fee situation.
 
A cut requiring stitches would qualify as an emergency and does not require a fee.
 
Treatment required as a result of activity in violation of Berks County Prison policy is a fee situation.
 
You will never be refused treatment at any time simply because of a lack of funds.
 
You are required to sign a "Medical Service Fee" form whenever medical service is rendered. If you refuse to sign the form, the medical staff will initial the form and any necessary fee will be deducted from your account, in any case.

 11. Section 3.6.5 of the Inmate Handbook sets forth billing procedures for medical fees as follows:

 
Medical Department Staff will complete a "Medical Service Fee Form" for all fee services provided.
 
All fees will be deducted in full from your inmate account. If necessary a negative balance will be maintained. The conditions for collection of monies when negative balances exist are:
 
Fifty percent (50%) of all incoming funds for your account, regardless of their source, will be credited to your negative account, and the remainder will be credited to your account for personal use. This will continue until all negative balances are satisfied. At discharge any available funds from your account will be credited toward your negative balance prior to issuing you a discharge check.
 
All remaining negative balances after discharge will be maintained on your permanent record. If recommitted, you will be required to pay any negative balance as outlined in the section above.

 12. Section 3.6.4 of the Inmate Handbook exempts "chronic illness" from the fee for medical services policy. The Handbook does not further define the term "chronic illness" but rather lists the following examples: "dressing changes, colostomy changes, diabetes, hypertension, or AIDS related syndrome". Inmate Handbook, § 3.6.4. This is the only written definition of the term "chronic illness." Colburn, Dep. p. 16-17.

 13. Section 3.6.4 of the Inmate Handbook exempts certain "emergencies" from the fee for medical services policy. The Handbook does not further define the term "emergency" but rather lists the following examples: "A twisted ankle from activities in the recreation yard is not an emergency and is a fee situation. A cut requiring stitches would qualify as an emergency and does not require a fee. Treatment required as a result of activity in violation of Berks County Prison policy is a fee situation." Inmate Handbook, § 3.6.4. This is the only written definition of the term "emergencies." Colburn, Dep. p. 20.

 14. Contagious diseases are not exempted from a fee. Clark, Tr. p. 94. The Prison, however, screens all incoming inmates for contagious diseases. Clark, Tr. p. 94.

 15. Inmates are not charged for follow-up visits ordered by a physician or nurse and are not charged for legitimate return visits for a condition they have already been treated for. Colburn, Dep. p. 34-35. This practice of not charging for return or follow-up visits is not set out in writing. Colburn, Dep. p. 34-35.

 16. Initial screening and psychiatric services are also exempt from the imposition of a fee. Inmate Handbook § 3.6.4

 18. At the time when a nurse assesses a medical fee, the nurse does not know whether or not the inmate has adequate funds in his or her account ...


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