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Gregg-El v. Doe

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

March 10, 2017

JOHN DOE, et al., Defendants.



         Charles Gregg-El, a Virginia inmate proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 naming numerous administrative and medical staff of the Virginia Department of Corrections (“VDOC”), Keen Mountain Correctional Center (“KMCC”), and River North Correctional Center (“RNCC”) as defendants. Gregg-El alleges that defendants violated the First and Eighth Amendments of the United States Constitution by retaliating against him and being deliberately indifferent to a serious medical need for knee replacement surgery. Defendants Doe, Fleming, Kiser, Mathena, Mullins, Ravizee, Robinson, Sandifer, Walls, Walrath, and Whited (collectively, “correctional defendants”) filed a motion for summary judgment. Defendants D'Alessandro, Stanford, and Wells (collectively, “medical defendants”) filed a motion to dismiss. Gregg-El filed a brief (without evidence) to oppose the correctional defendants' motion for summary judgment, and he filed a verified brief with an affidavit to oppose the medical defendants' motion to dismiss.[1] Upon consideration of this action, I will dismiss numerous claims as barred by the statute of limitations, and I will grant Defendants' motions as to the remaining claims and defendants.



         Gregg-El's grievances that are incorporated into the complaint describe the relevant medical issues better than the complaint itself. The grievances, which were filed over the past eleven years, reveal the following facts.

         Gregg-El had reconstructive surgery on his right knee in January 2005 to treat arthritis, osteosclerosis, and another problem. The surgeon noted that the reconstructive surgery was a “temporary” fix and that the best remedy would be knee replacement surgery. Between the surgery and the filing of the instant action, Gregg-El complained of worsening right knee function and pain, and he tried to persuade prison officials and medical staff to authorize knee replacement surgery. No official had approved knee replacement surgery as medically necessary by the time Gregg-El commenced this civil action. Instead, medical staff had diagnosed and treated the related symptoms with non-surgical methods, including an X-ray, a physical aid, medications, exercises, injections, and both lower-bunk and lower-floor assignments.


         Gregg-El mostly complains about the medical care involving his knees while housed at WRSP and KMCC from approximately 2005 to 2013. The defendants named in relation to these complaints starting from more than a decade ago are VDOC Health Services Director John Doe; KMCC Wardens Mathena and Fleming; KMCC Assistant Warden Kiser; KMCC Grievance Coordinator Sandifor; KMCC staffer Whited; KMCC Physician Assistant (“PA”) D'Alessandro; WRSP Warden Robinson; WRSP Grievance Coordinator Ravizee; and WRSP Nurse Stanford. Gregg-El was confined at RNCC as of November 14, 2013, and none of these particular defendants are alleged-either in the complaint or in administrative forms-to have had any involvement with Gregg-El for at least two years before he commenced this action.


         For the more recent claims, Gregg-El continues his allegations about staff's unwillingness to authorize knee replacement surgery. Gregg-El also alleges that Major Mullins retaliated against him for his administrative filings seeking that surgery. Major Mullins's alleged retaliatory act was inserting erroneous information in Gregg-El's inmate file to prevent him from obtaining a prison job.

         Facts involving RNCC Warden Walrath are not found in either the complaint or administrative forms. Facts involving RNCC Nurse Wells, RNCC Grievance Coordinator Walls, and RNCC Major Mullins are similarly not developed in the complaint. Consequently, I look to Nurse Wells's, Walls's, and Major Mullins's responses to Gregg-El's administrative forms as support for Gregg-El's more timely legal claims.

         1. Nurse Wells

         On August 3, 2014, Gregg-El filed an informal complaint requesting knee replacement surgery to cure on-going pain and various dysfunctions in his right knee. Two days later, Nurse Wells responded, “The doctor has seen you in the past regarding your right knee. A total knee replacement is considered elective surgery and is not approved while in DOC. If you need to see the doctor again, please submit a [sick call] request.”

         More than a year later on August 16, 2015, Gregg-El filed another informal complaint. Gregg-El inquired when he would see the outside doctor recommended by the facility doctor in July 2015. Nurse Wells replied on August 26, 2015, noting that he had seen the outside doctor during that same day.

         Gregg-El filed a third, relevant informal complaint on September 1, 2015, acknowledging that he was given a knee brace by the outside doctor but complaining that the brace was confiscated from him.[2] Nurse Wells responded on September 14, 2015, “The brace that was given to you at an outside orthopedics office contained large metal bands. Those are not allowed to be in your possession. The doctor here has sent a request to Richmond for the knee injections. We are awaiting approval.”

         2. Grievance Coordinator Walls

         Gregg-El alleges in the complaint that Walls ignored and returned several of his regular grievances without logging them for the Warden's review. The administrative record has four grievances that Walls rejected at intake and returned to Gregg-El.

         Gregg-El filed a regular grievance related to his knee on August 7, 2014, complaining:

I am not getting adequate medical treatment because I need total knee replacement and I am being told that I cannot get this surgery because the DOC disapprove of elective surgery. This is cruel and unusual punishment. Because to know I'm in pain all the time and to deny me . . . that would help with the pain and do nothing about is not adequate medical care. The doctor even tells me my knees are real bad and there is nothing he can do to help me with the pain. I want legal ...

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