United States District Court, W.D. Virginia, Abingdon Division
Melvin E. Williams, Mel Williams PLC, Roanoke, Virginia, for Plaintiff;
Margaret Hoehl O'Shea and Richard C. Vorhis, Assistant Attorneys General, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants.
Commonwealth of Virginia, Department of Corrections, A. Eugene Whited, Warden L. Flemming, and D.A. Braxton; and Elizabeth M. Muldowney, Rawls McNelis Mitchell, PC, Richmond, Virginia, for Defendants Gerald T. Hopkins, M.D., John D'Alessandro, P.A., Carey Hawks, L.P.N., Wanda Shelton, L.P.N., and Tallis Lester, L.P.N.
OPINION AND ORDER
JAMES P. JONES, District Judge.
Charles Edward Binns is a 49-year-old inmate in the Virginia prison system. In 2011 he was assaulted by another inmate wielding a "lock in a sock, " an all-too-common prison weapon, consisting of a heavy padlock placed in the toe end of a sock, swung like a medieval flail. Binns suffered a detached retina in his right eye from the attack. Following the injury, he was seen by an ophthalmologist who advised that he needed an urgent consultation with a retinal surgeon. Binns and his fiancee allege that they tried without success to obtain this medical treatment until finally, over three months after the attack, he was taken to a retinal surgeon who advised him that it was too late, that his retina had completely detached and nothing could be done to restore the vision in his affected eye.
Binns then filed suit in this court against various prison officials pursuant to 42 U.S.C. § 1983, contending that the loss of his vision was due to their deliberate indifference to his serious medical condition, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. He also alleged comparable violations of the Virginia Constitution as pendent state law claims. The defendants responded by filing motions to dismiss and/or motions for summary judgment. A principal ground of all of the motions is that the plaintiff failed to exhaust his available administrative remedies before filing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and Virginia law, Va. Code Ann. § 8.01-243.2.
The defendants' motions were referred to the magistrate judge for report and recommendation. After conducting an evidentiary hearing, the magistrate judge recommended that summary judgment be entered in favor of the defendants because Binns had admitted that he had not filed any "Informal Complaint or regular Grievance regarding the lack of appropriate, prompt medical treatment." (Report & Recommendation 10, ECF No. 55.) The plaintiff has timely objected to the Report and Recommendation, which objections have been fully briefed. Based on the record, and even accepting the magistrate judge's factual findings, I conclude that the defendants have not satisfied their burden of establishing exhaustion as an affirmative defense. Accordingly, I will not accept the magistrate judge's recommended disposition of the case.
The following are the facts taken from the record before the magistrate judge.
There is a system-wide inmate grievance procedure in Virginia, set forth in a document called Operating Procedure 866.1, introduced at the evidentiary hearing. (Ex./Witness List, ECF No. 54-1, hereinafter cited as "OP 866.1.) Binns has been in prison for many years - he is serving a life sentence - and has been housed at approximately 12 or 13 separate VDOC institutions. Binns testified that he had participated in inmate intake orientation, including explanation of prison grievance procedures, at some, although not all, of these institutions. Among other things, the procedure includes an "Informal Complaint, " which is a prerequisite to a "Regular Grievance, " which in turn includes three levels of appeal. There is also a separate "Emergency Grievance, " for situations or conditions that may subject the inmate to "immediate risk of serious personal injury or irreparable harm." (OP 866.1 § VII.A.)
The assault on Binns occurred on October 31, 2011, at the Pocahontas Correctional Center ("PCC"). Following the attack, Binns was taken to a hospital in nearby Bluefield, West Virginia, and then to the Virginia Commonwealth University Medical Center ("VCUMC") in Richmond, Virginia. At VCUMC it was "recommended that Mr. Binns be examined and treated by an ophthalmologic specialist and by an ear, nose and throat (ENT) specialist within three to five days after his examination." (Compl. ¶ 39, ECF No. 1.) Binns testified, however, that he had not been personally informed at this time regarding the extent of his injury or the need for further treatment.
After his release from VCUMC, Binns was transported back to PCC. Within days, he was transferred to Keen Mountain Correctional Center ("KMCC"), located an hour and a half away. Upon his arrival there, Binns was placed in segregation. Binns testified that no orientation had occurred at KMCC, and no one had explained the grievance procedure or provided him with an orientation handbook. In contrast, Captain Owens testified that all inmates - even those who are segregated for medical reasons - are orientated upon arrival and provided a copy of the grievance operating procedure as a component of the orientation handbook. Captain Owens, however, did not have personal knowledge of Binns' individual intake experience at KMCC.
Binns also testified that even if he had been provided an orientation handbook, he could not have read it because he could not see out of his right eye and his vision in his left eye was blurry. Binns' testimony conflicts, however, with a document he signed on November 15, 2011, which indicates that he was present for orientation at KMCC and received "DOP #866 Inmate Grievance Procedure.'" (ECF No. 54-16.) Binns acknowledged that he signed this form, but did so merely to leave segregation and enter the general population at KMCC.
Four or five days after being transferred to KMCC, Binns was transported to Abingdon, Virginia, to be seen by an ophthalmologist in private practice, F. Ellison Conrad, M.D. According to the Complaint in this lawsuit, this examination occurred on November 14, 2011. Binns testified that Dr. Conrad had been of the opinion that Binns could not see out of his right eye because the interior of his eyeball was full of blood. Dr. Conrad prescribed eye drops to reduce pressure in his eye and recommended that he return in two weeks. After the examination, several days passed before Binns received and started using the prescribed eye drops.
After being held in segregation for 10 days, Binns was released into the general population at KMCC. Upon release from segregation, Binns stated that he had his cellmate complete an Emergency Grievance form on his behalf. At the time, Binns was unable to personally complete the form as a result of his injuries.
This Emergency Grievance form was dated November 16, 2011. It states:
Attn: Nurse Boyd[.] I'm in pain my eye fill [sic] like it is coming out my head. I can't see out my right eye the pain is killing me[.] I need my pain medication. I can't sleep for the pain and blood in my eye Mrs. Boyd. The pain pills will help me some[.] Please give me something for this pain Mrs. Boyd[.] I'm in pain[.] I can't not [sic] sleep[.] Thank you for your assistance in this matter Mrs. Boyd RN[.] I was hit in my eye blood in eye[.]
(ECF No. 54-6.) A few hours after the form was signed, Nurse Boyd responded to Binns' Emergency Grievance by indicating on the form that it did not meet the definition of an emergency and writing that "you were seen & given medication & instructed to get on sick call in AM." ( Id. ) Binns was provided Motrin for his pain.
On November 19, 2011, Binns submitted a second Emergency Grievance form stating:
I received an eye injury on 11-1-11 which left me blind in the right eye. I whent [sic] outside of the Institution to see a [sic] eye specialist on 11-14-11 while at K.M.C.C., and this eye specialist prescribed some medication for my eye. This medication is to reduce the pain that I'm having and clear up the blood in my eye so that the Eye Doctor may try to get my eye sight back. I was prescribed this medication on 11-14-11 and today is ...