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Church v. Kennedy

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

May 20, 2016

Dr. Kevin W. Church, Sr., Plaintiff,
v.
Captain Roger Kennedy, et ah, Defendants.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE

         Dr. 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.[1]

         I. Standard of Review

         In 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.

         Courts 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)).

         II. Analysis

         A. General Deficiencies

         In 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.

         Second, 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.[2] 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.

         B. Requirement of medical co-pavments

         In the 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.

         It is 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.

         B. Deliberate Indifference

         In 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 ...


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