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Rivera v. Va D.O.C. Health Service Director

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

September 21, 2016

DENIS A. RIVERA, Plaintiff,
v.
VA. D.O.C. HEALTH SERVICE DIRECTOR, ET AL., Defendants.

          Denis A. Rivera, Pro Se Plaintiff; Margaret Hoehl O'Shea, Office of the Attorney General, Richmond, Virginia, for Defendants Schilling, Clarke, and Mathena; Carlene Booth Johnson, Perry Law Firm, Dillwyn, Virginia, for Defendants Miller, Yates, and Deel.

          OPINION

          James P. Jones United States District Judge

         Denis A. Rivera, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983. Liberally construed, Rivera's Complaint alleges that he received inadequate medical treatment for a persistent fungal infection and headaches, in violation of his constitutional rights. After review of the record, I conclude that the defendants' motions to dismiss must be granted.

         I.

         Rivera's claims arise from the course of his medical treatment at Red Onion State Prison (“Red Onion”), a prison facility operated by the Virginia Department of Corrections (“VDOC”). Rivera alleges that on March 5, 2013, Dr. Miller examined him for complaints about having suffered “headaches (brain pain/memory loss) after [he] had been beaten by guards months before” and about “the fungal infection on/in his body.” (Compl. 6, ECF No. 1.) During the appointment, Rivera allegedly “repe[a]tedly complain[ed]” to the doctor that the “Tolnafate 1% cream” ordered for Rivera's skin condition on January 29, 2013, was “not helping . . . at all and the infection was spreading and it was leaving scars on [his] body (mostly legs).” (Id.) Rivera allegedly told Dr. Miller that a previous doctor had prescribed “lotrisone cream and solenium sulfide lotion, ” and that he needed “an antifungal lotion (medication) that would make the infection go away and medication for the scars.” (Id.) Dr. Miller allegedly told Rivera that he was “a prisoner in D.O.C. and that D.O.C. doesn't care[] about any scars that are left on Plaintiff's body.” (Id. 6-7.)

         Rivera filed an informal complaint form on March 7, 2013, reciting the conversation that he had allegedly had with Dr. Miller on March 5.[1] Nurse Yates responded in writing on March 15: “You are scheduled for sick call for re-evaluation.” (Id. Ex. 1, at 1, ECF No. 1-1.) On March 21, 2013, Rivera filed a regular grievance, repeating the allegations from his informal complaint and stating: “At this time I haven't been re-evaluated.” (Id. at 2.) Investigating the grievance on April 4, Nurse Yates came to Rivera's cell and looked through the window in his door, while he allegedly “showed [her] that the fungal infection was getting worse and the scars that were being left. . . .” (Compl. 7.) Yates allegedly told Rivera that if he would withdraw the grievance, she would put him on the list to see the doctor; Rivera did not withdraw the grievance, and was allegedly not added to the list to see the doctor.

         In answer to Rivera's regular grievance, Warden Mathena's Level I response, dated April 15, 2013, stated, in pertinent part:

You stated you saw Dr. Miller concerning “brain damage” and a fungal infection on your body around March 5, 2013. Dr. Miller remarked that you are in prison, and the [DOC] does not care about the scars that are left on your body when you told him you needed an antifungal lotion that would make the infection go away. The response to your informal complaint stated that you would be re-evaluated but this has not been done.
Informal Summary: Your informal complaint responded to by Nurse L. Yates on March 15, 2013 stated . . . You are scheduled for sick call for re-evaluation.
A face-to-face meeting was conducted for this grievance by Nurse L. Yates on April 4, 2013.
Investigation: The nurse failed to schedule you for the re-evaluation, therefore your grievance is founded. This was an oversight. R. Deel, RNCA stated that you will be seen today (March 8, 2013). We apologize for any inconvenience this delay has caused you.
. . . .
This grievance is FOUNDED as there has [sic] incorrectly applied procedure of this policy. In the future correct procedure will be followed by ensuring the offender's name is added to the list if he is to be seen ...

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