United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Chief United States District Judge
Brown, a Virginia inmate proceeding pro se, filed this civil
rights action under 42 U.S.C. § 1983 against Patricia
Scarberry, the food services director at Red Onion State
Prison, in her individual capacity. Brown alleged that in
June 2014, he bit down on a piece of metal in prison food,
permanently injuring his tooth, and Scarberry admitted the
metal likely came from a defective can opener. The matter is
currently before the court on Scarberry's motion for
summary judgment and Brown's reply brief. Finding genuine
issues of material fact in dispute, the court will deny
Scarberry's motion and set the case for a jury trial.
verified complaint, Brown stated that on June 17, 2014, while
eating his lunch meal, he "bit down on a metal object in
the beans that come from the kitchen prepared by food
service." (Compl. 2, ECF No. 1.) He stated that
Scarberry took the tray, examined the metal object, and told
Brown that "'metal' came from a bad can opener.
'She knew there could be an injury' risk."
later showed Scarberry his teeth, and she allegedly said,
"I am sorry this happen[ed] to you. The can openers are
bad but they [are] all I got." (Id.) She
allegedly told Brown,
I use the only two can openers I have and . . . they are bad.
... I know 'metal' gets in the food from these bad,
defective can openers. I have seen it in the peanut butter,
tuna, beans, [and] jelly cans when open a lot. ... I look for
the metal and take it out when I see it. . . . Of course all
is not seen as this piece that broke your tooth.... I
can't buy new can openers.... I can't go over budget.
(Id.) Scarberry allegedly did not offer Brown a
replacement meal tray.
sought immediate treatment for his broken tooth and was
provided pain medication until he saw the dentist a month
later. The dentist coated the tooth with gel to decrease
sensitivity, but allegedly told Brown that if this solution
did not help, he would probably need to remove the tooth.
Brown also alleges that he had previously broken a tooth from
biting into a bit of metal in his Red Onion food tray in 2007
and, in June and July 2014, he had filed written complaints
of finding insects in food trays.
raised these allegations in this § 1983 action and in a
previous case (No. 7:14CV00466). The court summarily
dismissed the actions without prejudice under 28 U.S.C.
§ 1915A(b)(l) for failure to state a claim, and Brown
appealed. The United States Court of Appeals for the Fourth
Circuit vacated the dismissal order in this more recent case
as to Brown's Eighth Amendment claim against Scarberry
and remanded that claim for further proceedings. Brown v.
Brock. 632 F.App'x 744 (4th Cir. 2015).
Specifically, the Court stated: "Construing Brown's
claims of Scarberry's prior knowledge and repetition of
the incidents liberally, we conclude that he has alleged
sufficient deliberate indifference to require a response from
Scarberry." Id. at 746.
summary judgment motion presents a version of events quite
different from Brown's account. She states:
After being shown the piece of metal which Brown claimed he
found in his meal [on June 17, 2014], I determined that it
did not come from the kitchen.
The metal piece Brown claimed to have found in his meal was a
small copper wire that looked like something that might have
been stripped from a television or other electronic
I advised Brown that the only metal that hypothetically could
have come from the kitchen would have been silver shavings
from a defective can opener. However, I was merely explaining
to Brown that there was no possibility that the type of metal
he showed me came from the kitchen because it is not the type
of metal used in food preparation. I have no knowledge that a
defective can opener is being used, has caused, or could
cause metal to be present in ...