United States District Court, E.D. Virginia, Alexandria Division
Dr. Kevin W. Church, Sr., Plaintiff,
Captain Roger Kennedy, et ah, Defendants.
M. BRINKEMA UNITED STATES DISTRICT JUDGE
Kevin W. Church, Sr., a Virginia inmate proceeding pro se,
has filed a civil rights action, pursuant to 42 U.S.C. §
1983, alleging various unconstitutional practices at the
Eastern Shore Regional Jail ("ESRJ"). Plaintiff has
applied to proceed in forma pauperis in the lawsuit.
(Dkt. No. 2) By an Order dated June 23, 2015, deficiencies in
the initial complaint were discussed, and plaintiff was
allowed an opportunity to particularize and amend his
allegations in an amended complaint, to state claims for
which §1983 relief is available. In addition, plaintiff
was directed to sign and return a Consent Form and an
affidavit concerning exhaustion of his administrative
remedies. Plaintiff has complied with those instructions.
After careful consideration, plaintiffs claims must be
dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for
failure to state a claim.
Standard of Review
reviewing a complaint pursuant to § 1915 A, a court must
dismiss a prisoner complaint that is frivolous, malicious, or
fails to state a claim upon which relief can be granted. 28
U.S.C. § 1915A(b)(1). Whether a complaint states a claim
upon which relief can be granted is determined by "the
familiar standard for a motion to dismiss under Fed.R.Civ.P.
12(b)(6)." Sumner v. Tucker. 9 F.Supp.2d 641,
642 (E.D. Va. 1998). Thus, the alleged facts are presumed
true, and the complaint should be dismissed only when
"it is clear that no relief could be granted under any
set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding.
467 U.S. 69, 73 (1984). To survive a 12(b)(6) motion, "a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. IqbaL 556 U.S. __,
__, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly. 550 U.S. 544, 570 (2007)). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. On the other hand,
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice" to meet this standard, id., and a
plaintiffs "[f]actual allegations must be enough to
raise a right to relief above the speculative level...".
Twombly. 550 U.S. at 55.
may also consider exhibits attached to the complaint.
United States ex rel. Constructors. Inc. v. Gulf Ins.
Co.. 313 F.Supp.2d 593, 596 (E.D. Va. 2004). Where a
conflict exists between "the bare allegations of the
complaint and any attached exhibit, the exhibit
prevails." Id. at 596 (citing Favetteville
Investors v. Commercial Builders. Inc.. 936 F.2d 1462,
1465 (4th Cir.1991)).
general, despite the instructions and guidance provided in
the Order of June 23, the amended complaint (Dkt. No. 6)
fares little better than did the initial complaint. In the
first paragraph of the amended complaint, plaintiff reasserts
allegations from the initial complaint that he was wrongfully
arrested and prosecuted and is being detained unlawfully. Am.
Compl. at 5. As explained in the Order of June 23, claims
pertaining to the sufficiency of a criminal trial are not
properly raised in a §1983 complaint. Instead, where a
claim attacks the fact of confinement or the lawfulness of
state criminal proceedings, the appropriate remedy is a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§2254. See Wilkinson v. Dotson. 544 U.S. 74,
78-82 (2005) (summarizing the distinctions between §
1983 and habeas actions). Plaintiffs claims regarding his
allegedly unlawful arrest and conviction thus must be
dismissed, without prejudice to his ability to reassert them
in a §2254 application following their exhaustion before
the Supreme Court of Virginia.
much of the amended complaint is taken up with numerous
descriptions of events and situations experienced by inmates
at ESRJ other than the plaintiff himself. Plaintiff asserts
that other inmates were transferred after they
"legitimately and appropriately" complained about
conditions at ESRJ. Am. Compl. at 6-7. He also provides a
list of "known medically deprived inmates" at ESRJ,
along with descriptions of their conditions. Id. at
12-14. In addition, plaintiff accuses ESRJ of being
"deceitful and fraudulent" in its financial
practices with inmates in general, id at 7-8, and of failing
to provide adequate educational opportunities to assist
inmates in "successfully reintegrat[ing] back into
society." Id. at 8. To the extent that
plaintiff seeks to sue on the basis of these allegations and
to seek relief on behalf of other inmates, he has no standing
to make such requests. To state a civil rights claim, one must
allege that he, himself, sustained a deprivation of a right,
privilege, or immunity secured by the Constitution or federal
law. See Inmates v. Owens. 561 F.2d 560 (4th Cir.
1977). To demonstrate standing, a plaintiff must allege
personal injury fairly traceable to a defendant's
allegedly unlawful conduct and likely to be redressed by the
requested relief. See Allen v. Wright. 468 U.S. 737,
751 (1984); Valley Forge Christian College v. Americans
United for Separation of Church & State. 454 U.S.
464, 472 (1982). Here, then, to the extent that plaintiff
alleges that defendants' actions have negatively impacted
inmates other than himself, he has no standing to make such
claims, and they are subject to dismissal for failure to
state a claim pursuant to § 1915A.
Requirement of medical co-pavments
first of plaintiffs three discernable claims for relief based
on his personal experiences, he alleges that "several of
us... were told (and money was subsequently taken from our
accounts) that we could not see or obtain the proper medical
specialist help (doctors or surgeons, counselors, etc.)
unless we had the money in or placed in our commissary
accounts to cover their fees ... and cover the excessively
high co-pays, medical examines [sic], equipment, etc., in
which we as 'indigent inmates' (patients) should have
been paid for by the funds the ESRJ is receiving from the
state...." Am. Compl. at 7. Plaintiff has provided
copies of two exhibits which bear upon this claim. One
reflects that plaintiff was required to pay a total of $60.00
as co-pays for three prescriptions on June 18, 2015. In the
second, which is also dated June 18, 2015, the $25.00 co-pay
for plaintiffs visit to a doctor was crossed out, and
"0" was deducted from his inmate account.
recognized that the requirement of a co-payment for prison
medical services is not per se deliberate
indifference to a serious medical need. See Reynolds v.
Wagner, 128 F.3d 166, 174 (3d Cir. 1997); Johnson v.
Dep't of Pub. Safety & Correctional Servs.. 885
F.Supp. 817, 820 (D. Md. 1995). Inmates are not entitled to
free medical care, and an inmate's displeasure at having
to pay such co-payment does not present a constitutional
claim. Johnson. 885 F.Supp. at 820. Moreover, the
allocation of the cost of medical care is a matter of state
law. See City of Revere v. Mass. Gen. Hosp.. 463
U.S. 239, 245 (1983). Only when medical care is denied to an
inmate because of inability to make a co-payment are
deliberate indifference concerns under the Eighth Amendment
implicated. See, e.g,, Collins v. Romer. 962 F.2d
1508, 1514 (10th Cir. 1992). Here, plaintiff does not allege
that he personally was ever denied medical care due to
inability to make a co-payment, and the two exhibits he has
supplied plainly suggest otherwise: in one instance,
plaintiff received three prescriptions when he made a $20.00
co-pay for each, and in the other the co-pay of $25.00 for
his doctor's visit was waived. Accordingly, plaintiffs
claim that his co-payments for medical services at ESRJ are
unconstitutional must be dismissed pursuant to §1915A.
plaintiffs second claim for relief based on his personal
experiences, he alleges that he has suffered deliberate
indifference to his serious medical needs at ESRJ. Plaintiff
states that he is an Army veteran who in 1997 underwent
several days of extensive medical examinations and testing at
Walter Reed Army Medical Center, which diagnosed him with
"Mysterious Gulf War Syndrome and mild Post-Traumatic
Stress Disorder, " prescribed unspecified
"medicine, " and provided counseling with a
military psychiatrist and psychologist. Am. Compl. at 10.
Plaintiff further alleges that he "continued this
regiment [sic] from time to time over the past several years,
accompanied with exercise, steam room & sauna settings to
keep [his] Gulf War Illness under control;" however,
since his imprisonment, "all of this has been minimized,
inadequate, or doesn't exist." Id.
Plaintiff complains that he is deprived of the "constant
availability" of the Veterans' Administration
counselors, chaplains and doctors he previously enjoyed, did
not receive "meds" at ESRJ until June, 2015, and
that it also was not until then that blood tests were done to
determine his level of iron deficiency. Plaintiff ...