United States District Court, W.D. Virginia, Roanoke Division
ERIC J. DePAOLA, Plaintiff,
HAROLD CLARKE, ET AL., Defendants.
J. DePaola, Pro Se Plaintiff; J. Michael Parsons, Assistant
Attorney General, Office of the Attorney General of Virginia,
Richmond, Virginia, for Defendants Harold Clarke, David
Robinson, G. K. Washington, Fred Schilling, E. R. Barksdale,
S. Fletcher, Huff, and Trent; Carlene Booth Johnson, Perry
Law Firm, Dillwyn, Virginia, for Defendants V. Phipps, Dr.
Smith, Dr. Mullins, L. Stump, L. Mullins, and T. Cox; and
Ashlee Ayers Webster, LeClairRyan, Roanoke, Virginia, for
Defendant Dr. McDuffie.
P. Jones United States District Judge
DePaola, a Virginia inmate proceeding pro se, commenced this
civil action pursuant to 42 U.S.C. § 1983. DePaola named
numerous correctional and medical staff of the Red Onion
State Prison (“ROSP”) and Virginia Department of
Corrections (“VDOC”) as defendants, and they have
filed motions to dismiss. DePaola has responded to the
motions, and the case is ripe for disposition.
presents two claims about the allegedly insufficient medical
treatment he receives at ROSP for physical and mental
illnesses. DePaola's litany of dissatisfaction with
prison life begins when he entered the VDOC in 2004.
argues first that defendants violated the Eighth and
Fourteenth Amendments by their deliberate acts of denying and
delaying treatment of his medical issues, failing to
adequately treat his medical issues, or failing to properly
train for the proper treatment of his medical issues. DePaola
further argues that they violated the Eighth and Fourteenth
Amendments by applying VDOC Operating Policy
(“OP”) 720.1, which dictates that (i) inmates are
limited to three medical issues per doctor's visit; (ii)
inmates cannot be treated for skin rashes unless the rashes
are burning and/or itching; and (iii) a nurse must observe an
inmate via the sick call process and approve the inmate's
request for treatment and/or a doctor's examination
before treatment and/or the doctor's examination may
states that he has complained about his irritable bowels for
the past five years and that his consumption of dairy and
white bread exacerbates the symptoms. DePaola also complained
about the ineffectiveness of the treatments he received,
including medicine, and resultant weight loss. DePaola also
complains about a temporary rash he had on his penis.
October 17, 2014, Nurse Cox consulted with DePaola about his
discomfort and pain in his bowels and the rash on his penis.
Nurse Cox told DePaola to “stay away from foods that
bother” him, and noted no treatment occurs for skin
rashes that do not burn or itch. DePaola does not allege that
he told Nurse Cox that his rash burned or itched. DePaola
filed a complaint about Nurse Cox's responses.
response to DePaola's additional sick call requests,
DePaola met Nurse Mullins on December 1, 2014, and told her
about his bowels and penis. DePaola told Nurse Mullins he
would not withdraw his complaint about Nurse Cox, and Nurse
Mullins responded that DePaola “needed to stop crying
[because] the state don't [sic] care about those
issues.” Nurse Mullins refused to add DePaola to the
list to see the doctor and walked away from DePaola's
cell without measuring DePaola's vital signs. DePaola
also filed a complaint about Nurse Mullins' conduct.
December 23, 2014, DePaola met with Dr. Mullins. DePaola
explained that the prescriptions for his bowels did not help,
especially when he “consume[d] dairy & white bread
products. [He] further told [Dr. Mullins] that [the] rash was
persistent.” (Compl. 6, ECF No. 1.) Dr. Mullins
“then proceeded to prescribe the same meds that . . .
[didn't] work & advised [DePaola] to stay away from
foods [he] [couldn't] eat.” “They told him
that there is nothing he could do about [his] diet.”
(Id.) DePaola complained that he had “already
lost a lot of weight d[ue] to not eating bothersome foods,
” but Dr. Mullins said, “There is nothing we can
do, ” despite ordering lab work to test for
Inflammatory Bowel Disease. (Id. at 7.) DePaola also
alleges that Dr. Mullins ignored his complaints about the
rash. Dr. Mullins said, “[W]e don't treat rashes
that don't burn or itch, ” and allegedly ignored
DePaola's response, “[I]t does.”
filed an informal complaint, to which Nurse Phillips
responded. Nurse Phillips explained that, per OP 720.1,
DePaola was seen for three complaints - gas, cramps, and
mucus in stools - and that he should submit another sick call
request to discuss additional issues. Nurse Phillips also
stated that Dr. Mullins was correct “about the
statements in re: to [his] diet & rash.”
(Id.) Warden Barksdale and VDOC Health Services
Director Schilling affirmed Nurse Phipps' response during
their administrative reviews.
January 28, 2015, Nurse Stump allegedly refused to assess
DePaola for a sick call request, did not render treatment,
and tried to force DePaola to sign a refusal form.
February 3, 2015, Dr. Smith consulted with DePaola about the
lab work ordered on December 23. Dr. Smith reviewed the
results and told DePaola, “You're clean & going
to live for a long time.” (Id. at 8.) DePaola
acknowledges that the rash had ...