T.S. ELLIS, III, District Judge.
This matter comes before the Court on a Motion for Summary Judgment filed jointly by the defendants. Christopher D. Braxton, a Virginia inmate acting
In the initial complaint, which is the operative complaint in the lawsuit,
First, on January 8, 2014, Dr. Miranda at GCC submitted a consultation request for a radioallergosorbent ("RAST") test to determine if plaintiff was allergic to celery to Corizon Company, a "privately-owned medical contractor employed by the [Virginia Department of Corrections] to provide medical services and care for all prisoners." Compl. ¶ 6. The request was approved by Corizon's medical director on February 3, 2014, and on February 11 plaintiff underwent a blood test which he believed was a RAST for celery. On February 19, however, Dr. Miranda received a report stating that the laboratory had been unable to perform the test because Corizon's "prior authorization [was] required." Compl. ¶ 15.
On March 10, 2014, plaintiff again submitted to a blood test, and again a report was sent to Dr. Miranda stating that the test had not been performed because "authorization from Corizon is required." Compl. at 6. Plaintiff alleges "on information and belief" that Dr. Miranda sought authorization from Corizon for plaintiff to undergo a RAST for celery from January 2014 until June 2016, but defendant John Doe denied the requests on the ground that Corizon's policy is not to authorize RAST's for celery for prisoners. Braxton asserts that "said denials and said policy constitute deliberate indifference or reckless disregard under federal law." Compl. ¶ 20.
In the second component to his deliberate indifference claim, Braxton alleges that GCC medical staff provided Mr. Creque, GCC's Food Service Manager, with a copy of a diet order from Dr. Miranda regarding his celery allergy on April 2, 2014. Nonetheless, since that date Creque and his staff have continued to place celery on plaintiff's food trays. Compl. ¶ 29. Plaintiff filed informal complaints and grievances regarding the situation, and was told to take the celery off his tray and not to eat it. Compl. ¶¶ 30-31.
On March 2, 2016, after the grievance process had concluded unsuccessfully, plaintiff ate a meal from a food tray "minus the celery," and suffered an allergic reaction that consisted of "swelling of his face and throat, chest pain, breathing difficulty, unbearable itching, tightness around his waistline, wheals [sic] about his face, neck, chest, armpits, and groin," as well as "great fear that he was going to die." Compl. ¶ 34. During a medical examination that same day "food allergy blood testing" was ordered, but as before defendant John Doe denied authorization for such a test based on Corizon's policy. Compl. ¶¶ 35-36. The same scenario was repeated beginning on June 11 or 12, 2016, when plaintiff again consumed a meal "minus the celery," experienced an allergic reaction, and was denied a RAST test. Compl. ¶¶ 37-38.
On June 24, 2016, a medical provider at GCC discontinued the order for a RAST test for Braxton because Corizon and its representative refused to authorize it. Compl. ¶ 40.
The original named defendants were VDOC's Director of Health Services; Gregory Holloway, VDOC's Regional Administrator; Carolyn M. Parker, an Assistant Warden at GCC; Mr. Creque, GCC's Food Operations Manager; and the Corizon Company. Compl. at 2-3. Also listed in the style of the complaint as a defendant was John Doe, an unknown employee of Corizon Company who allegedly denied the institutional health care providers' requests for a RAST test for plaintiff. Compl. ¶ 19. In an Order dated June 28, 2017, Braxton's claim against Corizon Company was dismissed with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. [Dkt. No. 2] In the same Order, Braxton was informed that service could not be ordered on defendant "John Doe" until Braxton provided the court with his or her identity and address. Doe has never been served, and because it is now clear that he was a Corizon employee and hence not a state actor, he could not be liable to Braxton pursuant to § 1983.
Braxton makes the following specific claims against the remaining defendants:
Compl. at 13-14. Plaintiff seeks an award of compensatory and punitive damages as well as injunctive relief.
On May 19, 2018, defendants filed a Motion for Summary Judgment accompanied by a supporting memorandum and exhibits, asserting that: (1) the claim against defendant Parker is time-barred; (2) plaintiff fails to state an Eighth Amendment claim for which relief can be granted against the remaining defendants; and (3) defendants are entitled to qualified immunity as to plaintiff's claim for damages. [Dkt. No. 27-28] Defendants provided Braxton with the notice required by
Defendants have supplied evidence which establishes the following uncontested material facts. On April 7, 2014, Braxton submitted a grievance complaining that a RAST test had been performed but had not been authorized for laboratory testing by Corizon. Def. Mem., Att. A, Parker Aff. ¶ 5. On April 29, Assistant Warden Parker issued a response determining the grievance to be unfounded. An investigation into Braxton's complaint had revealed that he had self-reported the reaction he experienced after eating celery. A member of the institutional medical staff had ordered a RAST test for celery, but the Regional Medical Director and the Medical Director determined that under the circumstances a RAST test would be of little value. Braxton's medical record was noted with a celery allergy, and he was issued a medical pass with an allergy alert.
On March 16, 2015, Braxton submitted a grievance complaining that he had not been provided with a substitute food for celery on his Common Fare meal tray.
Braxton submitted an additional grievance on July 7, 2016, stating that the medical contractor provider would not permit his blood to be screened to determine the specific food which caused his allergic reaction. Assistant Warden Parker issued a Level I response determining the grievance to be unfounded on August 3, 2016. During an investigation into the complaint, GCC's Director of Nursing advised that Braxton had been seen by medical staff on several occasions for a rash which Braxton himself had related to the consumption of celery. Lab testing was ordered on March 2 and 8, 2016, but Braxton refused to have the testing performed. Based on the medical contract provider's procedures, medical staff determined that no further testing was necessary, and Braxton was advised to avoid celery which he believed to be the cause of his allergic reactions. Parker Aff., ¶ 7, Att. C. Braxton appealed the Level I response, and Health Services Director Herrick issued a Level II response agreeing that the grievance was unfounded. Herrick noted that Braxton had been advised that his medical record reflected an allergy to celery and that he should avoid eating it. Further, Braxton was advised that the GCC physician was responsible for his medical care and for determining whether there was a clinical need for specific lab testing. Parker Aff., Att. A; Herrick Aff. ¶ 8.
Braxton filed a response to the defendants' summary judgment motion on September 11, 2018. While the response itself is not sworn or signed under penalty of perjury, it is supported by an affidavit in which Braxton makes his "declarations under the penalty of perjury." [Dkt. No. 36] In the affidavit, Braxton disputes defendants' assertion in paragraph 14 of their memorandum that he refused the lab testing that was ordered on March 2 and March 8, 2016. Braxton states that he was never informed that these tests were ordered, and that once he learned that they had been recorded in his medical file by an unknown person he submitted informal complaints and grievances denying the refusals and requesting that they be removed from his file because they were "false." Braxton Aff. ¶ 3. GCC officials ignored his requests. Braxton points out that when he refuses medical treatment he is required to execute a Refusal of Medical Treatment form stating that he does not want the planned or scheduled treatment, and defendants have provided no such forms to support their assertions.
Braxton admits that he wrote in one of his grievances that the had undergone a RAST for celery but it was a "mistake on [his] part." He explains that medical staff at GCC had led him to believe that a regular blood test to which he had consented was a RAST, when in fact it was only a "simple blood [sic] unrelated to a RAST for celery." Braxton Aff. ¶ 4.
As to defendants' statement that Regional Medical Director Dr. Rodgers and Medical Director Dr. Gore determined that a RAST test would be of little value, Braxton asserts that Drs. Gore and Miranda "repeatedly requested Dr. Rodgers['] authorization for [him] to undergo the RAST . . . [and] the conclusion that a RAST for celery `would be of little value' was made by Dr. Rodgers arbitrarily and capriciously, as neither he nor Dr. Gore had examine[d] [Braxton] before this conclusion was reached." Braxton Aff. ¶ 5.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that judgment on the pleadings is appropriate.
Claim 5, in which Braxton asserts that defendants Parker and Director of Health Services violated his Eighth Amendment rights by failing to ensure that he would receive a RAST test for celery, is time-barred. There is no federal statute of limitations for § 1983 claims, but 42 U.S.C. § 1988(a) authorizes federal courts to borrow state limitations periods when not inconsistent with federal law.
Although the limitations period in § 1983 actions is borrowed from state law, "the question of when a cause of action accrues under . . . § 1983 remains one of federal law."
Here, Braxton complained in a regular grievance dated April 7, 2014, that he had undergone a RAST test but it had not been authorized for lab testing by the outside medical contractor. Defendant Parker determined the grievance to be unfounded on April 29, 2014, after an investigation determined that Braxton himself had reported that the allergic reaction occurred after he ate celery. Although a medical staff member had ordered the RAST test for celery, Medical Director Dr. Gore and Regional Medical Director Dr. Rodgers felt that under the circumstances it would be of little value. Braxton's record was marked with a celery allergy and he was issued a medical pass with an allergy alert. Parker Aff. ¶ 5, Att. A. Braxton appealed the Level I response, and VDOC's former Health Services Director issued a Level II response on May 16, 2014 agreeing that the grievance was unfounded.
Under these circumstances, any cause of action Braxton may have had stemming from the failure to ensure his receipt of a RAST test accrued by May 16, 2014. The complaint in this lawsuit was not filed until on or about March 24, 2017, almost three years later. Accordingly, the claim was filed well outside the applicable two-year limitations period. Braxton makes no argument in his Response to Motion for Summary Judgment [Dkt. No. 36] to counter defendants' argument that the claim is time-barred. Accordingly, defendants Parker and Director of Health Services are entitled to judgment as a matter of law as to Claim 5.
At this juncture, it is apparent that Braxton's claim that the defendants acted with deliberate indifference to his celery allergy and thereby violated his rights under the Eighth Amendment must fail. To do so, a plaintiff must show that jail officials were deliberately indifferent to a serious medical need.
First, the sole condition to which Braxton points as a basis for his medical need is his allergy to celery. Generally speaking, a prison official cannot be found to be deliberately indifferent based solely on the failure to accommodate a food allergy, because the Constitution does not require such an accommodation.
Braxton's claim also falters on the second component of a cognizable Eighth Amendment claim, because he has come forward with nothing to show or even to suggest that any defendant acted with subjective indifference to his celery allergy. The uncontroverted evidence now before the Court establishes that Braxton self-reported that he suffered an allergic reaction after eating celery, his record accordingly was marked with a celery allergy, and he was issued a medical pass with an allergy alert. Parker Aff. ¶ 5, Att. A. Medical officials at GCC also ordered a RAST test to confirm the celery allergy. Although the test ultimately was deemed not to be medically necessary, the fact that it was ordered belies any suggestion that GCC personnel were deliberately indifferent to Braxton's condition. Later, when Braxton sought medical attention for a rash he attributed to the consumption of celery, lab testing again was ordered on two occasions. Under the totality of these circumstances, no showing has been made that any defendant was deliberately indifferent to Braxton's allergy to celery.
To the extent that Braxton argues that the fact that he continues to be served celery occasionally on his Common Fare meal tray amounts to deliberate indifference, his position is not borne out by applicable authorities, which hold that "prisons are not required to serve a special diet if inmates can voluntarily refrain from eating offensive foods and maintain an adequate diet."
Under the foregoing circumstances, the evidence before the Court fails to establish the existence of either of the elements necessary to support a finding of deliberate indifference as to either component of Braxton's claim.
In Claim 4, Braxton argues that defendants Parker, Holloway and Herrick failed to exercise their supervisory authority over officials at GCC to ensure that he would receive a RAST test for his celery allergy. Essentially, he contends that these defendants responded unfavorably to his grievances and appeals seeking a RAST test by deeming them unfounded.
Supervisory officials may be held liable only in limited circumstances for constitutional injuries inflicted by their subordinates.
Moreover, had Braxton sued these defendants for their own participation in the alleged violation of his Eighth Amendment rights, his claim would still fail. Defendants Parker. Holloway and Herrick are alleged to have wrongfully denied Braxton's various grievances, and it is well established that prison officials can have no liability for decisions made during the grievance process.
Lastly, defendants assert the defense of qualified immunity. Because Braxton has failed to establish a violation of his rights under the Eighth Amendment, the Court need not address qualified immunity. See
For the foregoing reasons, defendants' Motion for Summary Judgment must be granted, and judgment must be entered in their favor. An appropriate Order and judgment shall issue.
