Favian Busby v. Floyd Bonner, Jr.

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0517n.06
No. 21-5853
UNITED STATES COURT OF APPEALS
FILED
Dec 14, 2022
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
)
FAVIAN BUSBY and MICHAEL EDGINGTON,
)
on their own behalf and on behalf of those similarly
)
situated,
)
Petitioners-Appellees, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
FLOYD BONNER, JR., in his official capacity as )
the Shelby County Sheriff; SHELBY COUNTY, )
SHERIFF’S OFFICE, )
Respondents-Appellants. )
)
BEFORE: BATCHELDER, WHITE, and BUSH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Respondents-Appellants, Sheriff Floyd Bonner,
Jr. and the Shelby County, Tennessee, Sheriff’s Office, appeal the denial of their motion to
terminate a consent decree that imposed various obligations on the Shelby County Jail (“the Jail”)
regarding its response to the COVID-19 pandemic. Because, on this record, the district court did
not clearly err in finding that Respondents failed to show that the Jail satisfied the decree’s
requirements for termination, we AFFIRM.
I.
A.
Petitioner-detainees initiated this action by petitioning for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 and filing a class-action complaint for declaratory and injunctive relief.
Named Petitioners Favian Busby and Michael Edgington, seeking to represent a class of “all
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current and future medically vulnerable . . . pretrial detainees held at the Jail who, according to the
[CDC], are at high risk of severe infection or death from COVID-19,” R.1, PID 2, asked the district
court to order their immediate release from the Jail and for other relief. They asserted claims under
the Fourteenth Amendment for unconstitutional punishment and unconstitutional confinement,
and under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
for disability discrimination. Concurrently, they moved for a temporary restraining order
directing, among other things, their immediate release.
The district court certified a class and subclass of medically vulnerable and disabled
individuals held pretrial at the Jail who are at an increased risk of serious injury or death from
COVID-19. But it denied Petitioners’ motion for temporary restraining order, finding that they
had failed to show a likelihood of success on the merits.1
After extensive discovery and three days of mediation, the parties settled the case and
entered into the consent decree at issue in this appeal. The consent decree requires the Jail to
comply with various inspection and reporting requirements; maintain safe ventilation and air
quality; implement various testing, isolation, and quarantine protocols; provide hygiene, personal
protective equipment, and vaccines; and implement social-distancing measures.
The consent decree requires the Jail to provide a monthly report to a court-appointed
independent inspector until the consent decree terminates. That report must provide information
such as the total population of the Jail, the number of COVID-19 tests conducted on staff and
detainees, the number of staff on leave due to COVID-19 symptoms, and the number of detainees
who have died from, exhibited symptoms of, or tested positive for COVID-19. The independent
1
The district court treated the motion for temporary restraining order as a motion for preliminary injunction on the
detainees’ request and because the court conducted a hearing on the motion.
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inspector is directed to conduct regular, unannounced inspections until the consent decree is
terminated or the independent inspector recommends or determines that no further inspections are
necessary. After each inspection, the independent inspector is to produce a written report
containing findings regarding COVID-19-related issues at the Jail. If the report contains any
recommendations, the Jail must, within fourteen days of receiving the report, either implement the
recommendations or explain why, despite its best efforts, it cannot or will not adopt the
recommendations.
The consent decree also requires the Jail to offer a test to all detainees and staff who exhibit
COVID-19 symptoms. If a detainee or staff member tests positive, the Jail must perform contact
tracing, and any detainee who tests positive must be isolated according to CDC guidelines. Finally,
the Jail must provide personal protective equipment and cleaning agents to detainees and
implement any social-distancing-related recommendations made by the independent inspector
unless the Jail gives specific reasons for its inability or unwillingness to do so.
In addition to these substantive requirements, the consent decree includes provisions
related to the enforcement and modification of the consent decree, as well as a confidentiality
provision. Relevant to this appeal, the decree contains the following termination provision:
XI. Termination
28. This Decree will terminate upon the earliest of either (a) a
declaration by the CDC and the Tennessee Department of Health that the COVID-
19 pandemic is over and/or has ended, or (b) an FDA-approved COVID-19 vaccine
is offered to and administered according to FDA guidelines to all detainees housed
at the Jail for a period of more than fourteen (14) days and who accept a vaccination,
along with educational materials about the vaccine and non-punitive incentives to
take the vaccine. Upon termination of this Decree pursuant to this Paragraph, the
parties shall inform the Court and the Court shall enter a final judgment of
dismissal.
29. If this Decree has not otherwise terminated one year after the
Effective Date, the parties may, at any time, jointly move the Court to terminate the
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Decree. If the parties do not agree that the Decree should terminate one year after
the Effective Date, [Respondents] shall have the right, at any time, to petition the
Court to terminate the Decree on the grounds that the Decree is no longer necessary.
R.161-2, PID 3210.
Finally, the consent decree contains the following paragraph titled “18 U.S.C.
§ 3626(a)(1)(A)”:
For purposes of jurisdiction and enforcement of this Decree only, the parties
jointly request that the Court find that this Decree 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 any violation of a federal right, and is the least intrusive means
necessary to correct any violation of the federal rights of the Plaintiffs.
Notwithstanding, nothing in this Decree shall be construed as an admission by any
party of any wrongful conduct whatsoever against any person or party.
R.161-2, PID 3211.
B.
The district court approved and entered the consent decree on April 12, 2021. Around two
months later, Respondents moved to terminate it. Respondents argued that the Jail had satisfied
the consent decree’s requirements for termination, having offered and administered a vaccine to
all eligible detainees and provided educational materials and non-punitive incentives to take the
vaccine.
After conducting a two-day evidentiary hearing on August 6, and 9, 2021, the district court
denied Respondents’ motion to terminate. The district court determined that Respondents failed
to meet their burden of demonstrating the Jail’s compliance with the requirement that it offer and,
if accepted, administer a COVID-19 vaccine to all detainees housed at the Jail for a period of more
than fourteen days. It noted that Petitioners had presented evidence that no vaccines were
administered during a three-week period in the summer of 2021. It was possible, the court found,
that a detainee who qualified for and requested a vaccine could have been released during this
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period before the detainee received a vaccine. The district court also observed that the Jail’s
“failure to track who has requested and received the vaccination, and present evidence of their
compliance with Paragraph 28(b)’s vaccine administration requirement leaves the Court with little
to go on.” R.258, PID 5069. Accordingly, the court determined that it was “left with a meaningful
dispute about whether [the Jail] ha[s] complied with the [vaccination] requirement.” Id.The district court also held that Respondents failed to meet their burden of demonstrating
the Jail’s compliance with the consent decree’s educational-materials requirement. The district
court credited Petitioners’ challenges to the availability and efficacy of the educational materials,
observing, among other things, that only 300 out of approximately 1900–2000 detainees had
attended “pep rallies” at which vaccine information was provided. Id., PID 5076. It also credited
the testimony of a detainee-witness that vaccine information on kiosks was not always available
to detainees, whether because they had not always had time outside their cells to access such
kiosks, or because the kiosks were not working. Additionally, the court noted that printed materials
provided by the Jail were “lengthy, dense, and in small print,” and questioned whether they would
be helpful “to a population whose average reading level is at a 6th grade level.” Id., PID 5080.
“What the Court can discern from the Parties’ evidence,” the district court stated, “is that, while
[the Jail] [is] making various attempts to educate the detainees about the vaccine, [its] efforts are
not available to all detainees, and beyond this, are not effective.” Id., PID 5079.
Finally, with respect to the requirement that the Jail provide detainees with non-punitive
incentives to take the vaccine, the district court determined that the detainees “have created
disputes about whether incentives have been offered to every detainee who has been housed at the
Jail for more than 14 days.” Id., PID 5082. Among other things, it recounted the testimony of a
detainee-witness who testified that he had not seen any printed notices about a $20 incentive for
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receiving the vaccine, and that he was not aware of anyone’s receiving a certificate of appreciation
that was supposedly given out as a reward. The district court also credited the testimony of another
detainee-witness who testified that he was never informed that he would receive post-vaccine
care—another purported incentive—and that even though he experienced side effects after
receiving the vaccine, he never received any medical care.
Respondents timely appealed and sought a stay order or, in the alternative, to expedite the
appeal. We denied the motion for stay and granted the unopposed alternative request to expedite
briefing.
II.
We review a district court’s interpretation of a consent decree de novo and its underlying
findings of fact for clear error. Evoqua Water Techs., LLC v. M.W. Watermark, LLC, 940 F.3d
222, 228–29 (6th Cir. 2019). When reviewing “an interpretation of a consent decree by the district
court that crafted the judgment,” that is, by the same court that “oversaw and approved the original
settlement agreement/consent decree,” our review is “more accurately described as ‘deferential de
novo.’” Shy v. Navistar Int’l Corp., 701 F.3d 523, 528 (6th Cir. 2012) (quoting Sault Ste. Marie
Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 371–72 (6th Cir. 1998)). In other words, we
accord “substantial deference” to the district court’s interpretation of its own consent decree on
appeal. Huguley v. Gen. Motors Corp., 67 F.3d 129, 132 (6th Cir. 1995). “Such deference is
required because ‘[f]ew persons are in a better position to understand the meaning of a consent
decree than the district judge who oversaw and approved it.’” Id. (quoting Huguley v. Gen. Motors
Corp. (Perry I), 999 F.2d 142, 146 (6th Cir. 1993)).
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A.
1.
Respondents argue that under the PLRA, prospective relief can “extend no further than
necessary to correct the violation of the Federal right,” 18 U.S.C. § 3626(a)(1)(A), and that the
district court refused to heed that requirement in ruling on its motion to terminate, instead
“appl[ying] a broad interpretation of Paragraph 28 that violates the PLRA and contradicts the
parties’ intentions as reflected within the consent decree.” Appellant Br. at 10, 25. More
specifically, Respondents contend that all detainees housed at the Jail “are being offered access to
COVID-19 vaccines,” id. at 20, and that Petitioners therefore cannot make the showing of federal
rights violations necessary to justify the continued operation of the consent decree. However, the
parties stipulated in Paragraph 31 of the consent decree that the decree complies with the PLRA
for enforcement purposes, and Respondents cannot now challenge that fact. Instead, they must
show that the Jail met the requirements of the termination clause.
Although they acknowledge that the district court’s findings are reviewed for clear error,
Respondents argue that “[b]ecause it is not only the District Court’s fact-finding that is at issue,
but its improper interpretation of the Decree” this court should “undertake a de novo review of the
District Court’s order.” Reply Br. at 8. Petitioners argue in response that this court’s task is both
narrow and straightforward: to determine whether the district court’s factual findings regarding
the Jail’s compliance with Paragraph 28 are clearly erroneous.
Because Respondents’ challenge to the district court’s interpretation of the consent decree
raises a legal question about a decree that the district court itself oversaw and approved, we apply
a deferential de novo standard of review. See Shy, 701 F.3d at 528. And, because Respondents’
challenge to the district court’s determination that they failed to satisfy the three requirements for
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termination in Paragraph 28 is a quarrel with the district court’s factual findings, we review that
challenge for clear error. See Evoqua Water Techs., LLC, 940 F.3d at 228–29.
2.
We first address the district court’s interpretation of the consent decree. In its order
denying Respondents’ motion to terminate, the district court noted that Paragraph 28, and the
consent decree overall, embodied an understanding that, “per the Parties’ agreement, the Decree
would terminate when the detainees were no longer in danger, either because the pandemic was
over or because an effective vaccination program had resulted in meaningful acceptance of the
vaccine.” R.258, PID 5066. The district court purported to base this conclusion on the text of the
consent decree itself, noting that “Paragraph 28 does not state that once a vaccine is offered, the
Consent Decree is terminated. Rather, it states that a vaccine must be offered in tandem with
effective communication and reinforcement of the benefits of the vaccine.” Id. The district court
further noted that while the problem of vaccine hesitancy was not the fault of the Jail, the
“requirements of Paragraph 28 implicitly reflect an understanding of this reality.” Id. The district
court then evaluated the parties’ proffered evidence regarding the Jail’s provision of vaccines,
educational materials, and non-punitive incentives to take the vaccine.
Although we accord substantial deference to the district court’s interpretation of the
consent decree, deferential de novo review is not without its limits. We do not “simply defer to
the district court’s interpretation.” Waste Mgmt. of Ohio, Inc. v. City of Dayton, 169 F. App’x 976,
988 (6th Cir. 2006) (quoting Engler, 146 F.3d at 371). Rather, we “utilize the lower court’s
understanding as ‘an additional tool for contract interpretation.’” Id. (quoting Engler 146 F.3d at
371).
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Our task in interpreting a consent decree is to “ascertain the intent of the parties at the time
of the settlement.” Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 478 (6th Cir. 2007)
(internal quotation marks omitted). We confine ourselves to the four corners of the consent decree
and do not focus on “what might satisfy the purposes of one of the parties to it.” Evoqua Water
Techs., LLC, 940 F.3d at 229 (quoting United States v. Armour & Co., 402 U.S. 673, 682 (1971)).
And we apply the law of the state in which the consent decree was entered: here, Tennessee. See
John B. v. Emkes, 710 F.3d 394, 407 (6th Cir. 2013).
Under Tennessee law, we determine the intent of the parties “based upon the usual, natural,
and ordinary meaning of the contractual language.” Roger Miller Music, Inc. v. Sony/ATV Publ’g,
LLC, 477 F.3d 383, 392 (6th Cir. 2007) (quoting Teter v. Republic Parking Sys., 181 S.W.3d 330,
342 (Tenn. 2005)). Courts may not act as “a fallback mechanism for parties to use to ‘make a new
contract’ if their written contract purportedly fails to serve their ‘true’ intentions.” Individual
Healthcare Specialists, Inc. v. BlueCross BlueShield of Tenn., Inc., 566 S.W.3d 671, 694 (Tenn.
2019) (citing Petty v. Sloan, 277 S.W.2d 355, 359 (Tenn. 1955)).
Here, Paragraph 28 provides that the consent decree will “terminate upon the earliest of”
either a declaration that the COVID-19 pandemic is over and/or has ended, or:
(b) an FDA-approved COVID-19 vaccine is offered to and administered according
to FDA guidelines to all detainees housed at the Jail for a period of more than
fourteen (14) days and who accept a vaccination, along with educational materials
about the vaccine and non-punitive incentives to take the vaccine.
R.161-2, PID 3210.
Although Paragraph 28 and the consent decree overall may, as the district court found,
have as their “purpose” the implementation of an “effective” vaccination program and the
protection of detainees from the dangers of COVID-19, the plain language of Paragraph 28 is more
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limited. And the words “meaningful acceptance of the vaccine” do not appear in Paragraph 28.
R.258, PID 5066.
All that Paragraph 28 requires is that, together with educational materials and non-punitive
incentives, the Jail offer and administer a COVID-19 vaccine “to all detainees housed at the Jail
for a period of more than fourteen (14) days and who accept a vaccination.” R.161-2, PID 3210.
That is not to say, however, that the Jail could satisfy Paragraph 28 by implementing a vaccination
program that is not reasonable given the consent decree’s overall goals.
Without more guidance, the precise contours of a reasonable vaccination program are left
to the sound discretion of the Jail, subject to the plain text of the consent decree and, of course,
judicial review. Paragraph 28 does not require a particular outcome, whether in terms of the overall
vaccination rate or otherwise, as it appears the district court may have intimated here. The plain
terms of Paragraph 28 do not permit us to judge the Jail’s compliance with the vaccination
requirement based on how “effective” we perceive those efforts to be. To so read the decree’s
termination provision would be to disregard the consent decree’s actual text and to add terms that
do not appear there. See Individual Healthcare Specialists, Inc., 566 S.W.3d at 694; see also
Heath, 1986 WL 18468, at *3. Accordingly, the relevant inquiry here is whether the Jail
implemented a reasonable vaccination program, including educational materials and incentives,
offering a vaccine to all detainees housed at the Jail for more than fourteen days and administering
it to all who accepted. To the extent the Jail’s efforts were reasonable, it cannot be faulted for a
lack of “meaningful acceptance of the vaccine.” R.258, PID 5066.
At bottom, the Jail’s vaccine-education efforts must be reasonable under the circumstances
of the moment. Just as compliance with the vaccination requirement cannot be determined based
solely on vaccine acceptance, the same is true of the incentives program. As with the vaccination
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program, the overall vaccination rate could potentially shed light on whether the Jail’s efforts to
educate and incentivize the detainee population have satisfied the minimum threshold of
reasonableness. But the ultimate question is whether the Jail has reasonably satisfied the
requirements of Paragraph 28.
B.
We now turn to the district court’s determination that Respondents failed to show
compliance with the consent decree’s requirements. The district court reached that conclusion
after hearing extensive witness testimony over the course of a two-day evidentiary hearing. And
because the district court’s factual findings were not clearly erroneous, we affirm.
1.
Respondents argue that the district court clearly erred in finding that the Jail failed to offer
and administer vaccines to all detainees housed at the Jail for more than fourteen days. They
contend that they presented evidence that more than 600 detainees received the vaccine during
thirteen sessions and that Petitioners have offered “no proof whatsoever” that any detainee in the
Jail has not been offered or has been denied a vaccine. Appellant Br. at 27.
“A finding of fact is clearly erroneous when, after reviewing the full record, we are left
with the definite and firm conviction that a mistake has been committed.” EMW Women’s Surgical
Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 428 (6th Cir. 2020) (internal quotation marks omitted);
see also United States v. Lanham, 617 F.3d 873, 888 (6th Cir. 2010) (“To be clearly erroneous, . . .
a decision must strike this Court as more than just maybe or probably wrong; it must strike us as
wrong with the force of a five-week-old, unrefrigerated dead fish.”) (cleaned up).
In its order denying Respondents’ motion to terminate, the district court noted that
Petitioners had elicited testimony from Chief Jailer Kirk Fields that no vaccines were administered
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during a three-week period in the summer of 2021. The district court observed that this gap, which
Respondents “do not attempt to clarify,” R.258, PID 5068, is “at least suggestive that there could
be detainees who had been at the Jail for more than 14 days, requested the vaccine during that time
period, but may have been released before they received it,” id., PID 5069. It also noted that the
Jail’s failure to track who requested and received a vaccine left it with “little to go on.” Id. On
appeal, Respondents argue that the district court’s reasoning amounted to a mere “hypothetical”
unsupported by evidence. Appellant Br. at 28. But it remains true that Petitioners have offered
no evidence of any current or former inmate who desired the vaccine and was not offered it. And
that three-week period in summer 2021 cannot be used to keep the consent decree in effect into
perpetuity. But as the district court noted, the jail has not submitted any recordkeeping reflecting
which inmates requested or received the vaccine.
Respondents instead rely on a handful of statements by Chief Fields during the evidentiary
hearing to support their assertion that the Jail offered and administered a COVID-19 vaccine to
every detainee who requested one. On the first page of testimony cited by Respondents, Fields
testified about how an inmate who first refused a vaccine could then request one. He also testified
that although the Jail had initially offered Pfizer vaccines, it later switched to Johnson & Johnson
vaccines when they became available. In the second page of testimony cited by Respondents,
Fields testified that “over 600 detainees” had received a vaccine and that all detainees had been
offered a vaccine since April 2021. R.251, PID 4568. Additionally, in response to the question,
“Has any detainee in the jail been prevented from obtaining a COVID-19 vaccine?” Fields stated
“No.” Id. Similarly, he stated “Yes” in response to the question, “Have all detainees who have
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been housed longer than 14 days and who have requested a COVID-19 vaccine been provided
one?” Id.2
The first page of testimony Respondents cite contains no information regarding whether
all detainees housed at the Jail for more than fourteen days were offered a vaccine and given one
if requested. Although slightly more illuminating, the other testimony of Chief Fields on which
Respondents rely consists only of bare assertions that the Jail fully complied with Paragraph 28’s
vaccination requirement. Faced with Fields’s conclusory testimony that all eligible detainees were
offered and received a vaccine on the one hand, and his later testimony on cross-examination about
a gap in vaccinations on the other, the district court made a credibility determination in concluding
that the Jail’s self-attested compliance was insufficient to negate the possibility that certain
detainees who had requested a vaccine did not receive it during the three-week gap in
administration.3 That determination is entitled to deference. See United States v. Pruitt, 156 F.3d
638, 647 (6th Cir. 1998) (“This court defers to the district court on credibility determinations unless
they are ‘without foundation.’”) (quoting United States v. Lucas, 889 F.2d 697, 700 (6th Cir.
1998)).
This is all the more true because Respondents offered no logs or other documentary
evidence to corroborate Fields’s testimony about the number of detainees who had been offered
and received a vaccine. So while it cannot be true that the three-week gap in vaccination can hold
2
Respondents also cite a portion of the transcript involving the following testimony from Chief Fields: “Q. And did
all the detainees who indicated a desire to receive the vaccine receive one? A. To my knowledge. I know on the first
vaccination date, some individuals who signed yes, when they got down to the vaccine site, they changed their minds.
[…] Q. And what do detainees have to pay to receive the COVID-19 vaccine? A. There’s no cost.” R.251, PID
4533; see Appellant Br. at 26.
3
Although this gap in vaccine administration is evidence that the Jail was not in compliance with Paragraph 28’s
vaccination requirement at the time the district court denied Respondents’ motion to terminate, it does not bar the Jail
from satisfying this requirement prospectively.
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the consent decree in effect forever, the Jail must show some sort of comprehensive recordkeeping
as to the offering and uptake of vaccines in its facility for us to consider forgiving its past error.
Such a showing has yet to be made.
With “little to go on” beyond Fields’s conclusory assertions, see R.258, PID 5069, the
district court did not clearly err in finding that Respondents failed to demonstrate the Jail’s
compliance with Paragraph 28’s vaccine termination provision.
2.
Respondents next argue that the district court erred in finding that the Jail failed to satisfy
the consent decree’s educational-materials requirement. They note that the Jail provided extensive
educational materials to the detainees in various mediums and argue that the district court
improperly required them to demonstrate the provision of educational materials to all detainees
housed at the Jail for more than fourteen days. We conclude that the district court did not clearly
err in finding that the Jail failed to satisfy the educational-materials requirement.
The district court was persuaded by Petitioners’ evidence that the Jail had “not provided
educational materials to every detainee housed at the Jail for more than 14 days.” Id., PID 5073.
For example, it credited the testimony of several detainee-witnesses who testified that wall posters
about the vaccine were unavailable in some housing pods; detainees had not always been allowed
outside of their cells for an hour each day, preventing them from viewing educational videos or
using kiosks on which information about the vaccine was displayed; kiosks in some pods did not
work; not all detainees were able to attend town halls at which information about the vaccine was
delivered live and in-person; and “vaccine education materials [are not] readily accessible to
inmates.” Id., PID 5077–78. The district court determined that “while [the Jail] [is] making various
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attempts to educate the detainees about the vaccine, [its] efforts are not available to all detainees,
and beyond this, are not effective.” Id., PID 5079.
Respondents argue that they presented “ample proof” that the Jail provided detainees with
educational materials about the COVID-19 vaccine in various mediums. Appellant Br. at 29.
“Each of these examples,” they contend, would “independently satisfy” the decree’s educational-
materials requirement, which in Respondents’ view only requires the provision of educational
materials to “detainees who accept a vaccine” and does not “specify what materials must be
distributed (or in what format).” Id. at 30.
Respondents’ contention that educational materials need only be provided to detainees
who have already accepted the vaccine makes little sense. We need only look as far as the
educational materials themselves to confirm that the requirement was intended to encourage
unvaccinated detainees to take the vaccine. During the hearing on the motion to terminate, for
example, Respondents introduced “a notice titled ‘FREE COVID-19 VACCINE!!!’”; “a one-pager
with three reasons why a person should get vaccinated”; “another 2-page document detailing three
key reasons to get vaccinated”; and “a compilation of posters encouraging . . . viewers to get the
vaccine,” among other evidence. R.258, PID 5073–74. At the very least, we find it reasonable to
conclude that, when the Jail offered educational materials to detainees, it understood that one of
the purposes of the educational-materials requirement was to encourage unvaccinated detainees to
get vaccinated. And practically, this makes sense.
Further, the district court did not clearly err in finding that Respondents failed to
demonstrate the Jail’s compliance with this requirement. The district court noted that, as with the
vaccination requirement, the Jail is not tracking who receives particular educational offerings.
Such poor recordkeeping makes it impossible to know whether or not materials have been offered
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to every inmate. Of course, the Jail need not provide every offering to every inmate uniformly.
Different media may be more effective in reaching different cell blocks or inmate populations.
And we reject both Petitioners’ and the district court’s intimations that the effectiveness of the
educational materials—presumably tied to the low vaccination rate—is relevant, as we noted
above. Whether inmates choose to take advantage of the educational materials is up to them; we
will not hold the Jail accountable for inmates’ refusal to engage with easily-digestible materials,
should the Jail provide them. But, as is true with the Jail’s lack of vaccination records, it is unclear
how, without meticulous recordkeeping, Respondents can prove which, if any, detainees were
provided with educational materials. And such is the case here.
Accordingly, the district court did not clearly err in finding that Respondents failed to
demonstrate the Jail’s compliance with Paragraph 28’s educational-materials requirement.
3.
Lastly, we consider whether the district court clearly erred in finding that Respondents
failed to demonstrate the Jail’s compliance with Paragraph 28’s requirement for the provision of
non-punitive incentives to take the vaccine. Respondents argue that they “provided extensive
proof” that the Jail offered detainees “numerous non-punitive incentives to take the vaccine.”
Appellant Br. at 32. And, they argue, because Paragraph 28 does not require that all detainees be
provided with each type of incentive, the Jail’s efforts satisfied the decree’s incentives
requirement.
During the hearing on the motion to terminate, Respondents introduced testimony from
Chief Fields that the Jail had offered detainees incentives including promises not to transfer
detainees from their current housing units, fresh fruit on the day of or day after receiving a
vaccination, free follow-up medical care, an award of $20 deposited in each vaccinated detainee’s
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commissary account, and a raffle to win a $100 commissary payment. Petitioners introduced the
testimony of several detainee-witnesses, which the district court credited, that they “ha[d] not
received this or that incentive.” R.258, PID 5080. For example, one detainee-witness testified
that he had not seen any printed notices about the $20 incentive, that he knew of one detainee who
had received one and one who had not, and that he was unaware of any detainee’s receiving a
certificate of appreciation that was supposed to be awarded to detainees who accepted the vaccine.
In its order denying Respondents’ motion to terminate, the district court found that
Petitioners had “created disputes about whether incentives have been offered to every detainee
who has been housed at the Jail for more than 14 days,” id., PID 5082, and that “[i]n the absence
of clear records, the picture that emerges is one of a lack of consistency,” id. On appeal,
Respondents argue that the consent decree does not require the Jail to provide incentives to all
detainees housed at the Jail for more than fourteen days—only those that have accepted the
vaccine. They contend, moreover, that because the decree does not require “each and every
potential non-punitive incentive or even a certain type of non-punitive incentive” to be provided,
the Jail easily satisfied this requirement by broadly offering various incentives. Appellant Br. at
34.
First, the only reasonable interpretation of Paragraph 28 is that the Jail must offer incentives
to the entire population, but need provide them only to detainees who accept the vaccine. The Jail
cannot merely dangle an incentive in front of a detainee, only to withdraw it after the detainee gets
vaccinated. But reading out of Paragraph 28 any obligation on the part of the Jail to take
affirmative steps to encourage vaccination among unvaccinated detainees through incentives
would be inconsistent with, and contrary to, the understanding that an “incentive” is “something
that incites or has a tendency to incite to determination or action,” here, acceptance of a COVID-
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19 vaccine. See incentive, Merriam-Webster Collegiate Dictionary, https://unabridged.merriam-
webster.com/collegiate/incentive.
Respondents also contend that Paragraph 28 does not require that detainees be offered
“each and every potential non-punitive incentive or even a certain type of non-punitive incentive.”
Appellant Br. at 34. That is correct. They further assert that because Petitioners provided no
evidence that the Jail failed to provide at least one type of incentive to every detainee that accepted
the vaccine, they have demonstrated the Jail’s satisfaction of this aspect of the termination
provision. However, given the detainees’ testimony and the fact that the Jail did not maintain
“clear records,” R.258, PID 5082, detailing which detainees received which incentives, the district
court’s factual conclusion that the Jail failed to meet the incentives requirement was not clearly
erroneous. Respondents could easily prove this by providing documentary evidence to the
contrary, but that evidence is absent from the record.
For these reasons, the district court did not clearly err in holding that the Jail failed to satisfy
Paragraph 28’s non-punitive incentives requirement.
III.
Ultimately, the district court denied Respondents’ motion to terminate due to a failure of
proofs. Critical to its decision was the Jail’s failure to maintain complete and accurate records of
its efforts to achieve compliance with Paragraph 28’s requirements. Without such evidence, the
district court determined that it could not verify whether the Jail had offered and administered a
COVID-19 vaccine to all eligible detainees. Although this finding was independently sufficient
to deny Respondents’ motion to terminate, the district court also determined that, based on the
sparse evidence before it, Respondents had failed to demonstrate the Jail’s compliance with the
educational-materials and incentives requirements as well. We find no basis to disturb those
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factual findings on appeal. As we noted above, we will not lock Respondents in forever for
recordkeeping failures or a short lapse in vaccination offerings. But termination of the consent
decree requires more than currently exists in the record.
Although our decision means that the consent decree will continue to remain in effect,
Respondents may return to the district court and move for termination once they have gathered
sufficient evidence of the Jail’s compliance with the decree’s termination requirements.
IV.
For the reasons set forth above, we AFFIRM the district court’s denial of Respondents’
motion to terminate the consent decree.
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