LEONIE M. BRINKEMA, District Judge.
John Livesay, a Virginia inmate proceeding
Plaintiff names two groups of defendants: Sergeant Gladys Walden, Warden Eddie L. Pearson, Warden C. M. Parker, Warden Louise Goode, Unit Manager Stephanie Robertson, Counselor C. Sykes, Ombudsman K. Whitehead, Ombudsman S. Tapp, Ombudsman K. Phillips, Dr. Mark Amonette, Health Services Director Frederick Schilling, Regional Administrator Gregory Holloway (collectively the "Correctional Defendants"), and Dr. David Spruill, Dr. Vincent Gore, Nurse Elizabeth Shaw, and Nurse A. Smith (collectively the "Medical Defendants").
The Correctional Defendants have filed a Motion to Dismiss plaintiff's Amended Complaint, and, after being granted an extension of time to respond, plaintiff filed his opposition to the Correctional Defendants' Motion to Dismiss. Dkt. Nos. 36-38, 52.
Dr. Spruill filed a Motion to Dismiss plaintiff's Amended Complaint to which, after being granted an extension of time to respond, plaintiff filed an opposition. Dkt. Nos. 41-42, 51. The remaining medical defendants Gore, Shaw, and Smith filed a Motion for Summary Judgment to which plaintiff has filed an opposition. Dkt. Nos. 55-57, 61. Defendants Gore, Shaw, and Smith also filed a reply and plaintiff, with leave of court, has filed a surreply. Dkt. Nos. 63, 66.
Finally, plaintiff has filed motions for discovery, to defer or deny defendant's motion for summary judgment, and for appointment of counsel, and the defendants have filed motions to stay discovery. Dkt. Nos. 69-71, 76, 78.
All these motions are ripe for adjudication. For the reasons that follow, the Correctional Defendants' Motion to Dismiss will be granted and the Medical Defendants' Motion for Summary Judgment
Plaintiff asserts that the Correctional Defendants were deliberately indifferent to his medical needs by (1) failing to provide him his missing items, specifically, a sleep mask and knee wraps, which he alleges are needed to address his photophobia and weak knees; (2) creating and following a policy of delaying medical treatment for inmates, in violation of VDOC operating policies; (3) delaying the processing of grievances; and (4) failing to train staff properly regarding the scheduling of medical appointments and the disbursement of medically approved property. In support of these claims, plaintiff asserts the following allegations in his Amended Complaint, which for purposes of the Motion to Dismiss are taken as true.
Plaintiff is currently incarcerated at Greensville Correctional Center ("GRCC"). Amend. Compl. at ¶ 4. The Amended Complaint alleges that when plaintiff, who was 52 years old when this civil action was filed, was previously held at Powhatan Correctional Center, he was classified by the Virginia Department of Corrections' ("VDOC") Americans with Disabilities Act ("ADA") Coordinator as being orthopedically and visually impaired, and was issued a sleep mask (for photosensitivity) and knee wraps (for knee support); however, when he was transferred to GRCC on October 27, 2014, these items were not re-issued to him.
On October 30, 2014, plaintiff spoke with defendant Unit Manager Robertson, regarding his missing property.
The Amended Complaint further alleges that on November 4, 2014, Dr. Chan authorized plaintiff to obtain knee wraps and a sleep mask from the property department,
On December 5, 2014, plaintiff informed Ombudsman Tapp that denial of his missing items would result in plaintiff being injured.
The Amended Complaint further alleges that on February 3, 2015, the ADA Coordinator stated that Warden Pearson was aware of the fact that plaintiff's items were being withheld.
On March 19, 2015, plaintiff submitted a Personal Property Request Form asking to purchase a sleep mask, which was denied on April 10, 2015, on the ground that "medical needs to provide sleep mask [
On April 10, 2015, Nurse Tarpley directed that plaintiff's sleep mask and knee wraps be released from the property department.
On May 26, 2015, Dr. Sharma ordered a new sleep mask for plaintiff, but the order was discontinued by defendants Dr. Gore and Nurse Shaw.
On October 14, 2015, plaintiff was told that his request for a sleep mask had been denied again by Dr. Gore, and plaintiff was informed that Dr. Gore found no medical indication that plaintiff needed a sleep mask.
On November 11 and 17, 2016, plaintiff sent defendant Dr. Amonette letters regarding his sleeping problems.
On December 1, 2016, Dr. Spruill told plaintiff that he would not order plaintiff a sleep mask or approve plaintiff for a sleep mask.
Plaintiff alleges that the Correctional Defendants maintained a policy of delaying medical treatment for up to several weeks at a time and denying medically necessary property for inmates, in part by not following the VDOC policy requiring that inmates be seen by a medical professional within 72 hours of submitting a medical request.
Plaintiff includes Wardens Pearson, Parker, and Goode in this litigation because they have final policy making authority at GRCC, and Sergeant Walden and Counselor Sykes because they have final policy making authority regarding the distribution of property.
Plaintiff was transferred from Powhatan to GRCC on October 27, 2014 and his numerous grievances throughout his incarceration at GRCC are included in the record and show that starting November 14, 2014, plaintiff began filing multiple grievances against various defendants addressing their failure to provide the sleep mask and knee wrap, as well as delays in getting medical appointments and medication.
On January 6, 2015, plaintiff filed a grievance regarding his inability to schedule an appointment with the medical department.
Plaintiff filed two grievances on January 10, 2015, one for a delay in receiving medication and the other stating that his back injury was a result of Sergeant Walden's failure to give him his knee wraps.
Plaintiff filed a grievance on June 12, 2015, because his missing items were mailed out.
On September 16, 2016, plaintiff filed a grievance because the medical department refused to give him copies of his medical records.
On October 4, 2016, plaintiff filed a grievance regarding his "pain relieving cream running out."
On November 1, 2016, plaintiff filed a grievance regarding his desire for a medical mattress as ordered by a doctor.
On November 10, 2016, plaintiff filed a grievance because he was not told the amount he had to pay for the copies of his medical records.
Plaintiff filed two grievances on December 2, 2016, because he was not allowed to have his window tinted and because Dr. Gore refused to order a sleep mask for plaintiff.
On December 22, 2016, plaintiff filed one grievance regarding not being timely seen by the medical department and another grievance alleging that he was improperly charged a medical co-payment.
On December 27, 2016, plaintiff filed a grievance stating he felt discriminated against because he was told cell windows were no longer being tinted.
Plaintiff filed a grievance on January 10, 2017, regarding his request to be housed at Deerfield because of his visual impairments; however, it was denied as an improper request for services by Ombudsman Tapp.
On February 6, 2017, plaintiff filed a grievance stating that Nurse Smith made a false statement in response to one of plaintiff's previous grievances.
On March 13, 2017, plaintiff filed a grievance because he did not receive his medications for fourteen days.
On April 16, 2017, plaintiff filed a grievance because he had been waiting over a year to be seen by a neurologist.
Plaintiff alleges that theses grievances made Wardens Pearson and Goode, and Ombudsmen Tapp, Whitehead, and Phillips aware of plaintiff's deficient medical care; therefore, they were deliberately indifferent by failing to require "GRCC and Armor employees to implement corrective measures."
Lastly, plaintiff alleges that defendants Pearson, Parker, Goode, Whitehead, Tapp, and Philips failed to train their staff regarding how to properly deal with medical issues.
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss those allegations which fail "to state a claim upon which relief can be granted." A court may also dismiss claims based upon dispositive issues of law.
As an initial matter, plaintiff's claims for money damages against all the defendants in their official capacity will be dismissed for failure to state a claim upon which relief may be granted.
As to plaintiff's remaining claims against the Correctional Defendants, to state a cognizable Eighth Amendment claim for denial of medical care, a plaintiff "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."
Plaintiff argues that the Correctional Defendants each had personal knowledge of plaintiff's medical issues and they should have known that the missing items, the sleep mask and knee wrap, were medically necessary because he told them he would be injured without them, he had medical authorization for the items, and he was deemed to be orthopedically and visually impaired by the VDOC ADA Coordinator. At the same time, plaintiff alleges, and the exhibits attached to plaintiff's Amended Complaint confirm, the medical personnel did not agree that plaintiff had a medical need for these items.
Plaintiff alleges that the Correctional Defendants could not release his missing items without approval from the medical department. Because plaintiff has not alleged that any of the Correctional Defendants were his medical provider at the time in question, they could not have been deliberately indifferent to a known medical need in denying plaintiff access to either a sleep mask or knee wrap based on the inconsistent instructions from the medical department.
Plaintiff has not alleged any facts suggesting that any of the Correctional Defendants were responsible for, or even had any control over, scheduling plaintiff to be seen by the medical department. In addition, plaintiff has not alleged that any of the Correctional Defendants prohibited him from being seen by the medical department. Accordingly, plaintiff has not alleged that the Correctional Defendants were deliberately indifferent to his medical needs by delaying his access to medical treatment. Moreover, as established by the medical records submitted by both plaintiff and the Medical Defendants, plaintiff was seen either by GRCC medical personnel or by outside medical specialists close to 100 times between October 27, 2014 and April 10, 2017.
Inmates do not have a constitutionally protected right to a grievance procedure, and no liability exists under § 1983 for a prison administrator's response to a grievance or appeal.
Moreover, the inconsistent information regarding plaintiff's medical need for the missing items, which plaintiff acknowledges in his Amended Complaint, defeats his claim that the Correctional Defendants were deliberately indifferent to a known medical need. This record would also support granting the Correctional Defendants' request for qualified immunity, because a reasonable officer in the Correctional Defendants' position could have relied on the information indicating that plaintiff did not have a medical need for the missing items. Therefore, plaintiff has not adequately alleged that the Correctional Defendants were deliberately indifferent to his medical needs based on the way they processed his grievances, and they are also entitled to qualified immunity.
Supervisory officials may only be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates.
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of proving that judgment on the pleadings is appropriate.
Plaintiff alleges that the Medical Defendants were deliberately indifferent to his medical needs by (1) failing to approve him for a sleep mask and/or a knee wrap as part of a policy of denying inmates medically approved property; (2) creating and following a policy of delaying medical treatment for inmates, in violation of VDOC operating policies; (3) maintaining a policy of cancelling, discontinuing, or refusing to properly order plaintiff's prescriptions; and (4) failing to properly train staff regarding the scheduling of medical appointments and the disbursement of medically approved property.
Plaintiff alleges that he suffers from a serious medical condition, photophobia, which makes him sensitive to light and for which he had been prescribed a sleep mask when he was incarcerated at Powhatan, and that the Medical Defendants' refusal to prescribe a sleep mask for him constitutes an intentional violation of his Eighth Amendment right to adequate medical care. In particular, he alleges that being deprived of a sleep mask has made it difficult for him to sleep. In various pleadings he also alleges to have suffered from headaches.
The defendants acknowledge that there is inconsistent evidence within plaintiff's extensive medical records as to the sleep mask, and that at various times different medical personnel directed that plaintiff receive a sleep mask; however, as those records also show, none of the medical staff who authorized a sleep mask had conducted an eye exam of plaintiff before authorizing a sleep mask. All those records indicate is that plaintiff simply asked for the mask.
Defendant Gore, the director of the GRCC medical department, explains that he canceled those orders because there was no evidence in the medical records supporting a finding of a medical need for a sleep mask. The Court finds that the unrebutted evidence fully supports Dr. Gore's conclusion.
When plaintiff was transferred to GRCC on October 27, 2014, the Intra-System Medical Review included no mention of photophobia as a "current medical/dental problem." Summ. Judg. Mem. Ex.1, at 1. Instead four conditions were listed: "Septoplosy for vestibular stenosis," "atypical CP [chest pain]/intermittent SOB," GERD (gastro-esophageal reflux disease), and left shoulder pain.
The first reference to a sleep mask reflected in the medical records was on November 4, 2014, when plaintiff was seen by a Dr. Chan whose notes quote plaintiff as saying "I want my sleep mask" and "I am light sensitive [and] cannot sleep."
Between November 4, 2015 and January 9, 2015, no medical report documents any complaint by plaintiff of any eye problems. During that same time period plaintiff received his echocardiogram and stress test at VCU on October 29, 2014.
On January 29, 2015, plaintiff was examined by Dr. Spruill, an optometrist, for a complaint of "eyes burn."
A medical record for April 10, 2015 shows plaintiff asking for a sleep mask, and the request being approved, but again, there is no indication of any medical exam having been conducted of his eyes by the person authorizing the sleep mask.
The only other medical record of an eye examination of plaintiff is from August 4, 2017, when plaintiff was seen by Dr. Gupta, an opthamologist, for complaints of "photophobia," "glaucoma suspect," "QDM," "trauma," and "seasonal allergy."
As the medical record of plaintiff's treatment clearly shows, although there were several health care practitioners who authorized plaintiff getting a sleep mask, none of those practitioners specialized in eye care and none had conducted an examination of plaintiff's eyes or made any medical diagnosis of a medical condition for which a sleep mask was needed. Moreover, the only two doctors specializing in eye care who had examined plaintiff's eyes agreed with the diagnosis of dry eye. Neither found evidence of photophobia and each concluded that all plaintiff needed to address his eyes was medicine for dry eyes.
Other than his unsupported belief that he suffers from photophobia, plaintiff has offered no evidence establishing that he suffered from a serious medical condition and no evidence that a sleep mask was medically necessary. On this record, summary judgment will be granted to the Medical Defendants as to the sleep mask issue.
Plaintiff's claim as to needing his knee wraps is similarly unsupported by the record. Once again, there is no evidence in the transfer papers from Powhatan that plaintiff suffered from knee problems or needed knee wraps.
A review of plaintiff's medical records fully supports Dr. Gore's refusal to authorize knee wraps based on his conclusion that they were not necessary to address a medical condition from which plaintiff suffered.
Plaintiff claims that the medical defendants and to some degree the correctional officers violated the Eighth Amendment by delaying his receipt of prescribed medications; however, the unrebutted evidence does not support a finding of deliberate indifference to plaintiff's medical needs.
As explained by defendant Shaw in her affidavit, many of plaintiff's medications were issued as "KOP," or "keep on person," meaning plaintiff was able to keep the medications in his cell and take them as ordered. Shaw Aff. ¶ 14. Especially for prescriptions issued KOP, inmates are responsible for requesting refills with enough time for the prescription to be approved and ordered by the pharmacy.
As defendant Gore explained in his declaration, the medical department has no control over the pharmacy's ability to keep medications in stock at all times.
At various points in his 240-paragraph Amended Complaint, plaintiff also alleges a failure to address defendants' failure to prescribe a soy-free diet and wedge pillow to relieve his GERD symptoms, as well as a medical mattress or mattress pad to relieve his back pain. The medical records do not show that such accommodations were medically necessary. The record also shows that plaintiff's GERD was being addressed with medications such as Prilosec, and his back issues were being treated with physical therapy and Mobic, the medicine prescribed by the orthopedic clinic.
Moreover, the affidavits of Dr. Gore ("Gore Decl."), Shaw ("Shaw Aff."), and Smith (Summ. Judg. Mem. Ex. 4) fully explain what they did and why they took such actions. The statements in these affidavits are consistent with the medical records and chronology of plaintiff's complaints and treatment, and plaintiff has not produced any evidence, other than his opinion, that contradicts their affidavits. Lastly, even if defendants were wrong in their assessment that plaintiff did not need any of the items he requested — a sleep mask, knee wraps, wedge pillow, thicker mattress, soy-free diet, and tinted cell windows — the significant efforts they made to address plaintiff's many documented medical problems defeats his claims that they were indifferent to his serious medical needs.
Accordingly, for all these reasons, the Medical Defendants' Motion for Summary Judgment will be granted.
Plaintiff has filed a First Request for Production of Documents, which will be taken as a Motion for Discovery. Dkt. No. 69. Plaintiff's discovery motion will be denied as the information requested would not have helped plaintiff in opposing the Medical Defendants' Motion for Summary Judgment and several of the requests are burdensome and overbroad. Plaintiff's requests include, but are not limited to, information regarding each defendant's position (including duties, pay, incentives, bonuses, and performance standards), "all Informal Complaints, Grievances, or other documents received from GRCC prisoners by any of the defendants . . . alleging they were not receiving adequate or timely medical care . . . from October 27, 2014, to the current date," "[a]ll documents detailing any communication between any of the defendants . . . regarding the prisoner's inability to receive adequate, proper, or tim[ely] medical care . . . from October 27, 2014, to the current date," and the contract between VDOC and Armor Health Care.
In addition, plaintiff was notified several times that he could, and should, reply to the Motion for Summary Judgment by filing counter-affidavits (sworn statements subject to the penalty of perjury), or other responsive material contesting the affidavits or records filed by defendants; however, he did not provide such materials. Plaintiff has submitted several affidavits of other inmates, none of which are actually relevant to the issues in this civil action. Therefore, plaintiff's Motion for Discovery will be denied and defendants' Motions to Stay Discovery will be denied as moot.
Plaintiff has filed a Motion to Defer or Deny Defendant's [
Plaintiff has filed a Motion for Appointment of Counsel. Dkt. No. 71. A court may request an attorney to represent an indigent plaintiff proceeding
For the foregoing reasons, plaintiff has failed to state a claim upon which relief can be granted pursuant to § 1983 as to the Correctional Defendants, and their Motion to Dismiss will be granted. In addition, the undisputed record establishes that the Medical Defendants were not deliberately indifferent to plaintiff's medical needs and their Motion for Summary Judgment will be granted. Finally, all remaining motions will be denied as moot. An appropriate order shall issue.
