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Hariston v. Ulep

United States District Court, E.D. Virginia, Alexandria Division

March 16, 2016

Stacey D. Hariston, Plaintiff,
v.
Dr. Benjamin Ulep, et ah, Defendants.

MEMORANDUM OPINION

Stacey D. Hariston, a Virginia inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to his serious medical needs at Sussex I State Prison ("SISP"). This matter is now before the Court on defendants' motions for summary judgment, to which plaintiff filed responses on November 17, 2015 and December 10, 2015. For the reasons that follow, defendants' motions for summary judgment will be denied, plaintiffs Motion to Dismiss Summary Judgment will be granted, and defendants will be ordered to provide plaintiff with the shoes to which he is entitled.

I. Background

Plaintiff is a Virginia Department of Corrections ("VDOC") inmate who has been confined at SISP since September 1, 2011. Dkt. No. 16, Davis Aff. at ¶ 6. It is undisputed that plaintiff suffers from several serious medical problems including a seizure disorder and multiple sclerosis, and that as a result of the latter medical condition, shortly after his arrival at SISP, Dr. Ulep prescribed him soft "white shoes with velcro strap" in November 2013. Dkt. No. 1 at 6. Plaintiff alleges that as of May 2015, when he filed the instant complaint, he still had not received these particular shoes. Id. Plaintiff attached several exhibits to his complaint including grievances and other documents, which show that his entitlement to the shoes is not in dispute; however, prison personnel have been unable to agree on who bears responsibility to provide plaintiff with the shoes: the property department or the medical department.

On at least two occasions when plaintiff was attempting to obtain the shoes, a nurse at SISP, Nurse Woodruff, allegedly told plaintiff that "property is to furnish you with the shoes"; however, when plaintiff addressed a complaint to the property department, a sergeant responded, "Your issue is with medical." Dkt. No. 1, Exs. 1 -3. Plaintiff thereafter unsuccessfully began the grievance procedure and subsequently filed the instant § 1983 complaint.

Plaintiff is seeking money damages, in the amount of $10, 000 per defendant, and injunctive relief directing that he be provided properly sized shoes appropriate for someone with multiple sclerosis. Dkt. No. 1 at 9.

i. Warden Keith Davis' Involvement

Defendant Keith Davis was the Warden at SISP from March 2013 until May 2015, which includes all times relevant to this lawsuit. Dkt. No. 16, Davis Aff. at ¶ 1. Davis is not a medical doctor, and he does not make decisions about the diagnosis and treatment of an inmate's medical needs. Id. at ¶5. Rather, Davis'job at SISP was primarily administrative. Among his duties was ensuring compliance with medical operating procedure at the institutional level. Id.

VDOC grievance records show that on November 12, 2014, the grievance office at SISP received a grievance from plaintiff in which he requested shoes to accommodate his medical condition. Id. at ¶6. Although Nurse Woodruff responded accurately to the grievance when she stated that plaintiff did not have a foot deformity, her statement that he did not require medical prescription shoes was not supported by the record because Dr. Ulep had prescribed special shoes for the plaintiff in order to accommodate his medical condition. Id. Davis investigated the issue and found that the property department had not provided plaintiff with the medical prescription shoes that Dr. Ulep had prescribed because property staff was not authorized to order that particular type of shoe, and only the medical department could order medical prescription shoes. Id. at ¶ 7. There is no evidence in this record that Davis did anything to rectify this bureaucratic quagmire, and it is undisputed that plaintiff was not provided with the shoes Dr. Ulep prescribed.

In November 2014, the standard state issue shoes at SISP were blue canvas dock style shoes. Dkt. No. 16, Brown Aff. at ¶5. In December 2014, SISP changed to a white athletic shoe style because they were considered to be more durable and lasted longer. Id. The standard athletic shoes were issued by the housing units on an as-needed basis. Id.

Plaintiffs personal property file does not contain documentation that any medical shoes were ordered for him while he was at SISP. Dkt. No. 16, Brown Aff. at ¶ 4. Moreover, it appears that SISP did not even offer plaintiff properly sized shoes. Although the medical records show that plaintiff needs a size 11 EEE, the Property Supervisor at SISP informed plaintiff that stretchable size 12 shoes could accommodate plaintiffs size 11 EEE, and that therefore, plaintiffs current issue shoes could be exchanged for a size 12. Id. at ¶7; see also Dkt. No. 1, Ex. 5. There is absolutely no evidence in the record that supports the Property Supervisor's conclusion that a size 12 would provide the right fit for plaintiff; however, based upon this unfounded statement, Davis deemed plaintiffs grievance unfounded on December 5, 2014, and the Regional Administrator upheld the decision on appeal.[1] Dkt. No. 16, Davis Aff. at ¶8.

VDOC policy requires that when an offender needs a medically necessary item, medical staff must procure the item, and the offender is required to make a co-payment for the item. Id. at ¶9.

ii. Doctor Benjamin Ulep's Involvement

Defendant Benjamin Ulep, MD, is a medical doctor who provided medical care and treatment to inmates at SISP at all times relevant to this lawsuit. Dkt. No. 23, Ulep Dec. at K 1. On or about November 6, 2013, Dr. Ulep saw the plaintiff at a sick call and noted that plaintiff had requested to see him regarding the fact that he wanted to wear the white leather shoes with Velcro straps that had been issued to him previously at Greensville Correctional Center for his neurologic disorder, multiple sclerosis. Id. at ¶ 7; Dkt. No. 23, Med. Rec. at 9. Dr. Ulep evaluated the shoes and noted that they should be appropriate to the prison environment and that plaintiff needed secure footing to minimize his fall risk. Id. On November 6, 2013, Dr. Ulep completed plaintiffs first Health Care Profile indicating that plaintiff could wear the white shoes with Velcro straps in place of the blue shoes that were issued at SISP at that time. Dkt. No. 23, Ulep Dec. at ¶ 7; Dkt. No. 23, Med. Rec. at 76. Specifically, Dr. Ulep noted that plaintiff may wear "white shoes w/ Velcro straps ... because of his MS." Id. The "stop date" for the shoes was directed to be "permanent." Id. If plaintiff had worn these shoes without a profile, security would have confiscated them. Dkt. No. 23, Ulep Dec. at ¶ 6.

Between January 2014 and September 2014, plaintiff saw Dr. Ulep at least four times regarding complaints completely unrelated to his footwear. Dkt. No. 23 at 4-5. On November 7, 2014, Dr. Ulep saw plaintiff in the Chronic Disease Clinic. During this visit plaintiff s concern was that the facility was unwilling to dispense a new pair of work boots for him without a medical detail. Dkt. No. 23, Ulep Dec. at ΒΆΒΆ 12, 15; Dkt. No. 23, Med. Rec. at 45, 77. At this time, plaintiff had not received the "white shoes w/ Velcro straps." Based upon plaintiff s request for new shoes, Dr. Ulep administered a second Health Care Profile, on November 7, 2014, which ...


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