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DePaola v. Clarke

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

September 27, 2016

ERIC J. DePAOLA, Plaintiff,
HAROLD CLARKE, ET AL., Defendants.

          Eric 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.


          James P. Jones United States District Judge

         Eric J. 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.


         DePaola 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.


         DePaola 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 occur.

         DePaola 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.

         On 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.

         In 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.

         On 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.” (Id.)

         DePaola 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.

         On 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.

         On 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 ...

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