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Carty v. P. Scarberry

United States District Court, W.D. Virginia, Roanoke Division

July 11, 2014

CHRIS CARTY, Plaintiff
v.
P. SCARBERRY, et al., Defendants

REPORT AND RECOMMENDATION

PAMELA MEADE SARGENT, Magistrate Judge.

The pro se plaintiff, Chris Carty, is a Virginia Department of Corrections, ("VDOC"), inmate currently housed at Red Onion State Prison, ("ROSP"). This matter is before the undersigned on cross motions for entry of summary judgment. (Docket Item Nos. 30, 75, 78) ("Motions"). The Motions are before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned now submits the following report and recommended disposition.

I. Facts

Carty brings this civil rights action against P. Scarberry, ROSP Food Service Director, and R. C. Mathena, ROSP Warden. Carty claims that these defendants have refused to provide him with the proper medically prescribed diet while he has been incarcerated at ROSP.[1] In sworn pleadings and affidavits, [2] Carty has stated that he should have been receiving a vegetarian cardiac low-salt/low-fat/ low-cholesterol diet. Instead, Carty stated that, beginning in March 2013, he has been receiving food trays that contain meat products and vegetable dishes that contain cheese. He also alleges that his food trays contain salt packets. Carty stated that he has been served food that he will not or cannot eat and, therefore, has not received proper nutrition, resulting in severe weight loss while incarcerated at ROSP. Carty stated that his weight has fallen to approximately 100 pounds. He stated that he has suffered from bed sores and migraine headaches and has been so weak that he, on occasion, cannot get out of his bed.

Carty states that both Scarberry and Mathena have been aware of the refusal to provide him meals complying with his medical diet since early March 2013, when he began pursuing his administrative remedies. In particular, Carty has submitted an Informal Complaint form that he submitted on March 3, 2013, complaining that he was not receiving the proper diet. (Docket Item No. 31-1 at 4.) The form shows that Scarberry responded to the complaint on March 11, 2013, stating that his medical diet controlled over his preferred "no meat" diet and that the food he was receiving was allowed by his medical diet. Carty also has submitted an Informal Complaint form that he submitted on March 17, 2013. (Docket Item No. 31-1 at 3.) On this form, Carty complained that he was receiving meat, which he did not eat, resulting in a deprivation of adequate food. This form shows that Scarberry responded to the complaint on March 29, 2013, stating that "[a] cardiac diet limits fats in the diet. A meat alternative diet substitutes meat with cheese or peanut butter, which are both high in fat. Per the DOC dietician your medical diet is to be followed over your preference."

Carty has submitted an Informal Complaint form that he submitted on July 11, 2012, complaining of receiving food not on his medical diet, including coleslaw, cake, cookies, cupcakes and cornbread. (Docket Item No. 79-1 at 3.) Scarberry responded to this form on July 27, 2012, stating that Carty's diet orders were being followed. Carty has submitted an Informal Complaint form that he submitted on September 3, 2012, on which he complained of receiving cakes, cookies, cupcakes and pancakes on his meal trays. (Docket Item No. 79-1 at 1.) Scarberry responded to this form on September 7, 2012. Carty has submitted an Informal Complaint form that he submitted on October 18, 2012, on which he complained of not receiving the proper medical diet. (Docket Item No. 79-1 at 2.) Scarberry responded to this form on November 2, 2012, stating that Food Services was following Carty's diet orders.

Carty also has submitted Regular Grievance forms submitted on March 27 and July 28, 2013, complaining about receiving food not allowed on his medically prescribed diet. Carty has submitted an Inmate Request For Information/Service form submitted on May 17, 2013, complaining that he was not receiving vegetarian meal trays. (Docket Item No. 31-1 at 13.) Carty has submitted an Offender Grievance Response - Level I dated April 15, 2013, from Warden Mathena addressing a grievance Carty had submitted complaining of receiving salt packets, cheese, butter and potatoes on his meal trays. (Docket Item No. 31-1 at 15.) Carty has submitted a VDOC Intrasystem Transfer Medical Review form stating that on October 8, 2010, upon Carty's arrival at ROSP from Wallens Ridge State Prison, Carty weighed 135 pounds. (Docket Item No. 31-1 at 14.)

Carty has submitted a Chronic Disease Clinic Follow-Up form, which appears to be signed by a medical doctor and dated February 26, 2013. (Docket Item No. 31-1 at 1.) According to this form, Carty suffers from hypertension with chest pain and palpitations. The form also states, "[h]eart healthy diet × 1 year per [patient] request." This form states that Carty weighed 124 pounds. Carty also has submitted a VDOC Offender Diet Order form from ROSP dated February 28, 2013. (Docket Item No. 31-1 at 2.) The form appears to be signed by a registered nurse and orders a cardiac diet for Carty for one year, expiring February 26, 2014. The form also notes that Carty has food allergies to cod fish and shellfish. Carty also has submitted a VDOC Offender Diet Order form from ROSP dated May 14, 2013. (Docket Item No. 79-1 at 23.) The form also appears to be signed by a registered nurse and orders a cardiac diet for Carty for one year, expiring February 26, 2014. The form also notes that Carty has food allergies to codfish, shellfish and eggs.

Scarberry has provided evidence by affidavit. (Docket Item No. 76-1.) Scarberry has stated that, as Director of Food Services at ROSP, she continually monitors food operations to ensure that offenders receive "a proper, nutritious and wholesome diet." Scarberry has stated that ROSP Food Services follows the VDOC master menu, which is developed by the VDOC dietician. According to Scarberry, the VDOC master menu meets minimum daily nutritional requirements and provides offenders with adequate portions and an appropriate amount of daily calories.

Scarberry has stated that ROSP medical department records show that, on January 31, 2012, the ROSP institutional doctor issued a diet order stating that Carty was to receive a low-sodium, low-fat/low-cholesterol diet and noting that Carty was allergic to eggs, codfish and pasta. On February 28, 2013, the institutional doctor issued a diet order stating to feed Carty for a codfish allergy, shellfish allergy and a cardiac diet. On May 14, 2013, the institutional doctor issued a diet order for Carty to receive a cardiac diet, noting that he had food allergies to codfish, shellfish and eggs. On October 17, 2013, the institutional doctor issued a diet order discontinuing Carty's cardiac diet, but he ordered that Carty receive a diet with no eggs, cheese, dairy or pasta. On January 30, 2014, the institutional doctor issued a diet order that Carty was to be provided with only wheat bread. Scarberry stated that only white bread is served at ROSP, so Carty has received rice as a substitute for bread since this order was issued. On March 26, 2014, the institutional doctor issued a diet order stating that Carty has food allergies and is not to be served, eggs, cheese, dairy or pasta for one year.

Scarberry said that the orders for Carty to receive a medically prescribed diet, the cardiac diet, took precedent over Carty's preference of a meat alternative diet. According to Scarberry, meat is allowed and provided on a cardiac diet. Scarberry said that offenders on a cardiac diet are instructed to remove any breading from meat, poultry and fish breaded products and to remove skin from poultry products. Scarberry said that the meat alternative offered for breakfast is cheese or peanut butter, which Carty was not permitted to receive while on the cardiac diet. Because of this, Carty received turkey sausage for breakfast.

In her discovery responses, (Docket Item No. 31-1 at 9-12), which Carty has filed with the court, Scarberry stated that a "cardiac diet" is a low-salt/low-fat/low-cholesterol diet. Scarberry stated that the cardiac diet was not specifically a meat diet, but that meat was used as a protein source on this diet. Scarberry stated that a meat alternative diet is a preference and that Food Services honors an offender's request for meat alternative diets when feasible and practical.

In her discovery responses, Scarberry also stated that, as of March 17, 2013, Carty's name was on the "meat alternative list." Scarberry stated Food Services accommodated his request by substituting beans for meats on his lunch and dinner trays, which complied with his medically prescribed diet. Scarberry stated that Food Services was not able to accommodate Carty's request for no meat on his breakfast trays because it had no substitute for the cheese and peanut butter meat alternative. Scarberry stated that, when Food Services could not accommodate Carty's request, his medical diet would take precedent.

Scarberry, in her discovery responses, admitted that most meal trays at ROSP contain a "spork packet" which contains one packet of salt. Scarberry stated that Carty was not required to use ...


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