United States District Court, W.D. Virginia, Roanoke Division
DENIS A. RIVERA, Plaintiff,
VA. D.O.C. HEALTH SERVICE DIRECTOR, ET AL., Defendants.
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.
P. Jones United States District Judge
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.
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.)
filed an informal complaint form on March 7, 2013, reciting
the conversation that he had allegedly had with Dr. Miller on
March 5. 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.
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 ...