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Brown v. Scarberry

United States District Court, W.D. Virginia, Roanoke Division

July 15, 2016

BERNARD BROWN, Plaintiff,
v.
PATRICIA SCARBERRY, Defendant.

          MEMORANDUM OPINION

          Glen E. Conrad Chief United States District Judge

         Bernard 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.

         Background

         In his 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." (Compl. 3.)

         Brown 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.

         Brown 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.

         Brown 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."[1] Id. at 746.

         Scarberry's 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 equipment.
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 ...

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